Tuesday, May 31, 2022

Court Addresses Statute of Limitations Under Federal Employers' Liability Act


In the case of Loomis v. Delaware and Hudson Railway Co., Inc., No. 17-CV-5421 (C.P. Lacka. Co. May 12, 2022 Nealon, J.), the court denied a Defendant’s Motion for Summary Judgment based, in part, on the three (3) year statute of limitations under the Federal Employers’ Liability Act (“FELA”).

In this matter, the Plaintiff filed suit under the Federal Employers’ Liability Act alleging that her husband contracted cancer and later died from continuous exposure to toxic substances during his railroad employment and due to the railroad employer’s failure to provide a reasonably safe work environment.

According to the record before the court, the decedent was first diagnosed with cancer in 2007 and later died in 2014.

In response to the Defendant’s Motion for Summary Judgment on the statute of limitations issues, the court found that neither the decedent nor his widow was ever advised by any healthcare professional, railroad representative, or any other person that the cancer was possibly related to the decedent’s railroad work or his exposure to toxic substances. Rather, the evidence indicated that a potential causal connection between the decedent’s cancer and his job was first mentioned to the widow by a co-worker of the decedent in the same year that she commenced a lawsuit.

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


Source of image:  Photo by Tom Barrett on www.unsplash.com.

Preliminary Objections to Allegations of Recklessness Overruled in Montgomery County



In the case of Patton v. Greco, No. 2021-CV-14422 (C.P. Montg. Co. March 16, 2022 Haaz, J.), in an Order only, the court overruled a Defendant’s Preliminary Objections to allegations of recklessness and claims for punitive damages in a personal injury matter.

The court noted that, after discovery has been completed, the Defendants may again challenge whether the facts gathered n discovery supported claims for recklessness and punitive damages.

Anyone wishing to review a copy of this decision, which is by Order only, may click this LINK.


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

Monday, May 30, 2022

Summary Judgment Granted in Slip and Fall Case Where Plaintiff Fell on Grass and While It Was Still Snowing


In the case of Mertira v. Camelback Lodge & Indoor Waterpark, No. 2031-Civil-2021 (C.P. Monroe Co. March 30, 2022 Williamson, J.), the court granted the Defendant’s Motion for Summary Judgment in a winter slip and fall case.

In this matter, the Plaintiff alleged that the Defendants were negligent in allowing ice and snow to remain on their property, which allegedly caused the Plaintiff to slip and fall and become injured.

Of note, the court stated that the record confirmed that there was no dispute between the parties that freezing rain and/or snow was falling as the Plaintiff entered the premises, while the Plaintiff and her family dined within the premises, and for several hours even after the Plaintiff fell.

The court also noted that, as the Plaintiff and her family left the restaurant, they chose to walk on a grassy strip and not on a sidewalk or parking lot surface.

After applying the hills and ridges doctrine, the court stated that none of the Plaintiffs or the witnesses identified any hill or ridge formed by ice or snow. The court also reiterated that it was precipitating the entire time that the Plaintiff was on the premises, including several hours after she fell.

The court also emphasized the rule of law that a property owner has no obligation to correct snow and ice conditions until a reasonable time after a winter storm has ended.

The court additionally noted that there is no duty on a property owner to clear snow or ice from grassy areas as they are not intended to be traversed by pedestrians.

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


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

Source of image:  Photo by Craig Whitehead on www.unsplash.com.

Thursday, May 26, 2022

Summary Judgment Denied for Issues of Fact In Wal-Mart Trip and Fall Case



In the case of Noga v. Wal-Mart Stores East, L.P., No. 10170 of 2019, C.A. (C.P. Lawr. Co. March 24, 2022 Hodge, J.), the court denied a Defendant store’s Motion for Summary Judgment in a trip and fall case.

The Defendant filed a Motion for Summary Judgment asserting that Plaintiff was speculating as to the cause of the Plaintiff’s fall in that the Plaintiff had allegedly not provided any evidence that any alleged defect in the sidewalk was the cause of her fall.

The court found that the Defendant was not entitled to summary judgment as there was sufficient evidence in the records, including a store manager’s deposition testimony regarding an alleged crack in the sidewalk where the Plaintiff fell, for a jury to conclude that the crack in the pavement was the cause of the Plaintiff’s fall.

As such, the Defendant’s Motion for Summary Judgment was denied.

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


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

Wednesday, May 25, 2022

Pennsylvania Superior Court Upholds Trial Court's Denial of a Defendant's Petition to Open a Default Judgment After Entry of $23 Million Dollar Verdict


In the case of Roy v. Rue, No. 1598 EDA 2021 (Pa. Super. April 12, 2022 Lazarus, J., Kunselman, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed a trial court’s denial of a Defendant’s Petition to Open and Strike a Default Judgment entered against him by the Plaintiff.

This lawsuit arose out of a fight that occurred at a restaurant that resulted in eventually fatal injuries to the Plaintiff’s decedent. The Plaintiff filed suit against a restaurant and the assailant. The issues in this case pertain to the entry of a default judgment against the assailant.

The restaurant defendant settled out of the case.    

The case eventually went to trial on damages and a verdict was entered against the assailant in an amount in excess of $23 million dollars.

Thereafter, the assailant filed a Petition to Open the Default Judgment. The assailant asserted that he was incarcerated when the trial court held the assessment of damages trial and that he did not appear because he allegedly did not have notice of the trial. The court noted that the docket confirmed that the Prothonotary provided notice to the Defendant of the trial at the Defendant’s home address, at which time the Defendant was in prison.

The Defendant additionally asserted that he was not provided with service of the original process. 

The Defendant also argued that he acted promptly once he learned of the default judgment and that he allegedly had a meritorious defense to the claims in the lawsuit, that being that the Defendant allegedly acted in self-defense.

The Pennsylvania Superior Court ruled that the trial court properly denied the Defendant’s Petition to Open or Strike the Default Judgment where the Defendant failed to show any defects with regards to the return of service of the Complaint, with regards to the 10-Day Notice of Intent to File a Default Judgment, or with respect to the Notice regarding the trial date on the assessment of damages. 

The court additionally found that the Defendant’s Petition was not timely filed.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 26, 2022).


Friday, May 20, 2022

Court Addresses Forum Selection Clause in a Post-Koken UIM Case As Well As the Validity of Allegations of Recklessness



In the case of Coello v. Fitzgerald and Erie Insurance Exchange, No. 7019-CV-2021 (C.P. Monroe Co. Feb. 11, 2022 Zulick, J.), the court addressed issued of proper venue in a post-Koken motor vehicle accident litigation. 

Relative to the Preliminary Objections filed by the UIM carrier Defendant asserting improper venue, the court noted that, although venue is proper in Monroe County under Pa. R.C.P. 2179, which allows for an injured party to bring a civil action against an insurance company/ corporation in a county where that company or corporation regularly conducts business, in this matter, Erie Insurance was relying upon a forum selection clause in the parties’ insurance contract.

Under that forum selection clause, the parties agreed that any suit to enforce the terms of the policy would be filed in the county of the Plaintiff’s legal domicile at the time the suit was filed. The record in this case confirmed that the Plaintiff alleged in his Complaint that he resided in Scranton, Lackawanna County.

The court upheld the forum selection clause and carved out the UIM case and transferred that portion of the case to Lackawanna County but kept the Plaintiff's case against the tortfeasor in Monroe County.

As such, the UIM carrier Defendant’s Preliminary Objections with regards to venue was sustained.

In so ruling, the court found that the Plaintiff’s argument that it would be unreasonable to put him to the expense of securing a medical expert for two (2) separate trials did not outweigh the contract provision on venue.

Judge Arthur L. Zulick
Monroe County



In his Opinion, Judge Arthur L. Zulick of the Monroe County Court of Common Pleas also addressed the tortfeasor Defendant’s demurrer against the Plaintiff’s claims against punitive damages. The tortfeasor Defendant asserted that the Plaintiff failed to allege sufficient facts to support such a claim and that the Plaintiff had only merely alleged that a motor vehicle collision had occurred.

Relative to the allegations of recklessness, Judge Zulick referred to Rule of Civil Procedure 1019(b), which provides that conditions of the mind may be averred generally. The court noted that, under the case of Archbald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009), an allegation of recklessness is an allegation as to a condition of the mind which could be averred generally.

As such, the court denied the Defendant’s demurrer to the Plaintiff’s claim for punitive damages and noted that such a decision should be left to the jury in terms of whether the Plaintiff’s case met the burden of proof in this regard.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 12, 2022).


Tuesday, May 17, 2022

UM Bad Faith Claim Dismissed Where No Breach of Contract Claim Present



In the case of Nye v. State Farm Mut. Auto. Ins. Co., No. 3:21-CV-01029 (M.D. Pa. March 30, 2022 Wilson, J.), the court addressed a Motion to Dismiss an uninsured motorist claim and bad faith claim.

With regard to the Plaintiff’s pleading of a claim for uninsured motorists benefits in the Complaint, the defense moved to dismiss given that the Plaintiff had failed to plead the identity of the tortfeasor driver and/or whether that driver was in fact uninsured.

The court found that there was sufficient information from which the Plaintiff could have made this determination and included it in the Complaint. As such, this portion of the Motion to Dismiss was granted but the Plaintiff was allowed leave to amend the Complaint to add the missing details.

With regards to the bad faith claim, the court first observed that there must be some predicate claim against the insurance policy even if the bad faith claim is a distinct claim. More specifically, the court stated that “there must be a predicate contract claim in order for a §8371 claim to proceed.” 

The court also noted that, while the predicate claim need not be tried together with the §8371 claim, the predicate cause of action must be ripe in order for a bad faith claim under §8371 to be recognized.

Given that the court had dismissed the breach of contract claim relative to the uninsured motorist claim due to the insufficiency of the pleading on that claim, the court found that the predicate cause of action otherwise required to accompany the §8371 bad faith claim was missing.

As such, the bad faith claim was also dismissed but without prejudice, in light of the court allowing the Plaintiff the right to file an Amended Complaint relative to the breach of contract claim.

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


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

Pennsylvania Superior Court Addresses UIM Coverage Issues Regarding Discrepancies In the Policy Documents



In the case of Hartford Fire Ins. Co. v. Davis, No. 310 MDA 2021 (Pa. Super. May 9, 2022 Olson, J, Kunselman, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court overturned a trial court’s entry of summary judgment in favor of a carrier in a UIM arbitration matter on issues of whether or not the subject automobile insurance policy had certain UIM coverages available.

This case arose out of a motor vehicle accident that occurred back in 2005. The Plaintiff was injured while operating a vehicle owned by his employer.

The vehicle operated by the Plaintiff was insured by Hartford under a commercial automobile insurance policy. During the annual renewals of the policy up through the time of the Plaintiff’s accident, it has been the practice of the insurance company to obtain a UIM coverage rejection form for each policy term renewal. However, the carrier failed to do so for the policy in question.

At the time of the subject accident, a Pennsylvania UIM coverage endorsement was appended to the subject policy although the policy did not specify any limit of UIM coverage for Pennsylvania.

In entering summary judgment, the trial court found that the UIM policy issued by Hartford for the subject year of the accident did not specify a limit of UIM coverage for Pennsylvania and that, therefore, the coverage limit was $0 and the Pennsylvania UIM endorsement attached to the policy was a nullity. The trial court further held that the employer as effectively waived UIM coverage in Pennsylvania by executing a rejection of UIM protection form a few years before the accident.

On appeal, the Pennsylvania Superior Court found that the trial court erred in finding that the subject policy of insurance issued by the Hartford did not provide for UIM coverage at the time of the accident despite the fact that a UIM coverage endorsement was attached to the policy. The Pennsylvania Superior Court also agreed with the Plaintiff that the trial court had erred in concluding that the rejection of UIM protection form executed by the employer prior to the accident was applicable to the subject policy.

The Superior Court based its decision, in part, on 75 Pa. C.S.A. §1731, which mandates that an insurance company issuing a policy in the Commonwealth of Pennsylvania must provide UM/UIM coverage equal to the bodily injury liability coverage, unless the insured validly rejects UM/UIM coverage or validly requests lower limits pursuant to §1734.

Accordingly, where, as here, the subject policy of insurance provided $2 million dollars in liability coverage at the time of the accident, absent a valid and specific rejection of UIM coverage, the court found that the Pennsylvania UIM coverage limit in this case would also be $2 million dollars. Elsewhere in the Opinion, it was indicated that the Plaintiff had previously secured an Arbitration Award in excess of $2 million dollars on the case presented.

The trial court’s decision was vacated and the case was remanded for additional proceedings consistent with this Opinion.

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 firm of Schmidt Kramer for bringing this case to my attention.


Monday, May 16, 2022

Bad Faith Claim Allowed to Proceed On A Homeowner's Claim From a Fire Loss


In the case of Jaworowski v. Erie Ins. Co., No. 4250-Civil-2020 (C.P. Monroe Co. March 30, 2022 Williamson, J.), the court denied a Motion to Dismiss a Plaintiff’s bad faith claim against the carrier.

This matter arose under a homeowner's policy relative to an alleged fire loss.

According to the Opinion, the carrier claimed that it had legitimate grounds to deny the Plaintiff coverage based upon a lack of residency. The court noted that the evidence in the record made the issue of the Plaintiff’s claimed residency questionable but not free from all doubt.

As such, the court denied the Defendant’s Motion for Partial Summary Judgment.

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


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

Source of Image:  Photo by Maxim Tajer on www.unsplash.com.

Thursday, May 12, 2022

Trial Court Directs Defense Forensic Economist Expert To Issue An Amended Expert Report To Comport With Law on Damages or Be Precluded From Testifying At Trial


In the case of Van Auken v. Saud, No. 20-CV-4717 (C.P. Lacka. Co. April 29, 2022 Nealon, J.), the court addressed several Motion In Limine issues in a medical malpractice action.

This medical malpractice action arose out of a claim against an emergency room physician who allegedly failed to diagnose and treat a minor’s aortic dissection which caused the minor’s death one day later.

The Plaintiff’s filed a wrongful death action seeking damages for their own losses and, in that regard, the parents advanced a claim for the pecuniary value of the services that the decedent would have provided to them. In the survival action, the decedent’s estate sought to recover damages for the decedent’s loss of her future earnings, minus her personal maintenance expenses, during her estimated work life expectancy.

The Plaintiffs filed a Motion In Limine against the opinion of the Defendants Forensic Economists in that the expert excluded health insurance from the fringe benefits calculations for the decedent’s loss of future earnings based upon a rationale that the decedent’s family members did not lose health insurance as a result of the minor’s death. 

The Plaintiffs also objected to the defense forensic economist expert’s inclusion of transportation cost and personal care products and services cost in the estimation of the decedent’s personal maintenance expenses to be deducted against the decedent’s loss of future earnings. The Plaintiffs asserted that Pennsylvania law does not recognize those types of cost as components of a decedent’s personal maintenance expenses.

In addressing this Motion In Limine, the court found that the defense economist expert fundamentally misconstrued the damages recoverable under the Wrongful Death and Survival Act and, as such, the court directed the Defendant’s expert to issue an amended report that complies with Pennsylvania law by including health insurance benefits in the fringe benefits estimation and by excluding the cost for transportation and personal care products and services from the personal maintenance expenses computation. The court held that, if the Defendant failed to submit such an amended report, the expert would be precluded from testifying at trial.

On a separate Motion In Limine filed by the Plaintiffs, the Plaintiffs asserted that the defense medical liability expert witness who expressed opinions regarding the complexities of the treatment involved and the difficulty in recognizing an aortic dissection in pediatric patients, did not opined that any physician complied with or deviated from the applicable standard of care. As such, the Plaintiffs asserted that the medical liability expert witnesses opinions were not relevant to the issues presented.

The court rejected this Motion In Limine filed by the Plaintiff after finding that the opinions expressed and the observations made by the defense pediatric cardiothoracic surgeon were relevant to the medical issues to be considered by the jury. The court also found that this expert possessed the requisite qualification to testify on those medical issues presented. As such, the Plaintiff’s Motion In Limine in this regard was denied.


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




Court Reaffirms The Rule That A Plaintiff Cannot Sue a Tortfeasor's Liability Carrier For Bad Faith


In the case of Gitelman v. Wilkinson, No. 2:21-CV-1696 (W.D. Pa. March 24, 2022 Stickman, J.), the court confirmed that a Plaintiff has no standing to sue a tortfeasor Defendant’s carrier for bad faith.

In this matter, the Plaintiff had settled her personal injury case and the tortfeasor Defendant’s carrier issued a settlement check for over $100,000.00. The Plaintiff never deposited the check and took the position that she was defrauded and that she was entitled to more money from her own carrier and from the Defendant’s carrier.

The Plaintiff filed a bad faith claim against the tortfeasor Defendant’s carrier on the basis that that insurance company owed her a duty of good faith and fair dealing.

The court granted the Motion to Dismiss this claim and, citing the Pennsylvania Superior Court case of Strutz v. State Farm, 609 A.2d 569 (Pa. Super. 1992), confirmed that a tortfeasor’s carrier owes no duty of good faith in dealing to third party Plaintiffs.

Accordingly, the court found that the Plaintiff in this matter was found not to have any standing to sue the tortfeasor’s carrier for bad faith.

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

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

Tuesday, May 10, 2022

Proper Jurisdiction for Social Media Defamation Claim Reviewed


In the case of Gorman v. Shpetrik, No. 2:20-CV-04759-CMR (E.D. Pa. March 10, 2022 Rufe, J.), the court addressed jurisdiction issues, and other issues, arising out of a claim of defamation related to online post and tweets that allegedly damaged the Plaintiff’s reputation.

With regard to the jurisdiction issue, the court found that the defendant allegedly directed allegedly defamatory messages to a person within the jurisdiction, with the intent to damage the reputation of another person also in that jurisdiction.  The court found that the defendant had therefore been involved in activity expressly directed at the jurisdiction such that the exercise of personal jurisdiction was proper over the case presented.

Relative to a statute of limitations issues raised by one of the Defendants, the court noted that the limitations period began to run when defamatory material was published.

The court also noted that the Plaintiff’s lack of knowledge as to the Defendant’s identity could not support an application of the discovery rule under the facts presented in this case. 

However, the court found that the Plaintiff had sufficiently pled a claim of fraudulent concealment by alleging that the Defendant had provided false information when registering on the social media platforms on which the allegedly defamatory material was allegedly published. As such, the court allowed discovery on this issue before making a determination as to whether the doctrine of fraudulent concealment could serve to toll the statute of limitations on some of the Plaintiff’s claims in this matter.

The court additionally dismissed the Plaintiff’s claims of intentional infliction of emotional distress after finding that this claim failed because the Plaintiff had not alleged any physical injury connected to or caused by the Plaintiff’s alleged emotional distress.

The court also found that the Plaintiff’s claims for civil conspiracy failed because the Plaintiff had not alleged that all members of the purported conspiracy shared a common purpose, but rather, merely alleged that they took acts that furthered the alleged purpose of the conspiracy.

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 (April 6, 2022).

Monday, May 9, 2022

Motion To Dismiss Punitive Damages Claim Granted Where Evidence of Recklessness Was Lacking in "Run-of-the-Mill Intersectional Collision" Case



In the case of Barbarevech v. Tomlinson, No. 18-CV-4821 (C.P. Lacka. Co. March 25, 2022 Nealon, J.), the court addressed a Motion for Partial Summary Judgment filed by a Defendant in a motor vehicle accident case seeking to dismiss punitive damages asserted against the Defendant on the ground that the evidence presented by the Plaintiff was insufficient as a matter of law to sustain the Plaintiff’s claims of recklessness.

The employer Defendant also sought to dismiss the Plaintiffs’ direct liability claim for negligent hiring, training, and supervision of the employee under an argument that the employer’s admission that the employee was acting within the scope of her employment at the time of the accident.

Relative to the punitive damages claims, after noting that there was no evidence in the record that the Defendant driver was speeding, driving while impaired or distracted by cell phone use, or otherwise engaged in unreasonable conduct manifesting a conscious disregard of a known or obvious risk posing a high probability of harm to others, the court granted the Defendant's Motion to Dismiss the claim for punitive damages.

The court additionally noted that, based upon the facts of this “run-of-the-mill intersectional collision,” the Plaintiffs’ expert was not permitted to express a legal opinion that the Defendant driver was chargeable with “reckless indifference” as defined by Pennsylvania law, particularly since the record did not contain an adequate basis in fact for that opinion.

The court also rejected the Plaintiffs’ attempt to assert that the Defendant employer’s post-accident investigation of the collision did not cause or contribute to the accident or the harm that the Plaintiff had suffered and, as such, could not serve as a basis for the Plaintiff’s punitive damages claims. Judge Nealon otherwise stated that there was no other evidence in the record that the Defendant employer acted in a willful, wanton, or reckless manner.

As such, the Motion to Dismiss the Punitive Damages Claim was granted.

On the separate claim of direct employer liability for the alleged negligence in selecting, training, and supervising employees and their activities, the court allowed this claim to proceed after finding that Pennsylvania case law provides that a Plaintiff may pursue such a claim against an employer on theories of direct and vicarious liability, either at the same time or alternately, and Plaintiffs need not surround a direct liability claim against the employer if the employer acknowledges an agency relationship with the employee. As such, the employer’s Motion for Partial Summary Judgment with regards to the independent claim for negligent hiring, training, and supervision was denied.

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

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

 


Friday, May 6, 2022

Another Court Rules That the Time Courts Were Closed Due to COVID-19 Pandemic Are Not To Be Deducted From the Delay Damages Computation



In the case of Yoder v. McCarthy Construction, Inc., May Term 2018, No. 0769 (C.P. Phila. Co. Feb. 10, 2022 Foglietta, J.), the trial court issued Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s rulings during the course of a personal injury trial that resulted in a $5 million dollar verdict of the Plaintiff.

Of note, the court rejected the Defendant’s assertion that the trial court erred in awarding delay damages for the period that the court was closed due to the COVID-19 pandemic. 

The court ruled that the plain language of Rule 238 indicates that delay damages are appropriate due to the delay that is not the fault of any party. The court found that a court closure due to a pandemic falls within this definition. 

The court additionally noted that the trial court’s closure during the pandemic “did not prevent defense counsel from picking up the telephone, scheduling a Zoom hearing, or sending a text message to opposing counsel indicating the desire to make an offer to settle this case.” See Op. at 11. 

The trial court judge indicated that the court’s closure could have served as an encouragement to the parties to settle and that, the fact that it did not, did not entitle the Defendant to a reward when the underlying purpose of delay damages is to discourage dilatory conduct.

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


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

Liquor Liability Exclusion Found Not To Apply Against a Multi-Claim Complaint



In the case of AIX Specialty Ins. Co. v. American Legion Department of Pennsylvania, No. 2:21-CV-023380-MAK (E.D. Pa. March 14, 2022 Kearney, J.), the court addressed a declaratory judgment action regarding coverage potentially owed to an American Legion relative to an underlying personal injury claim filed by a Plaintiff who was injured by a gun shot wound in an American Legion after the assailant was allegedly served alcohol while that assailant was allegedly visibly intoxicated.

After the court’s review of the liquor liability exclusion contained in the policy and determined that certain claims asserted by the Plaintiff could potentially fall within such coverages allowed by the policy, the court found that the exclusion at issue did not apply in this matter involving a multi-claim complaint.

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


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

Thursday, May 5, 2022

Allegations of Recklessness Allowed to Proceed in Lackawanna County Case



In the case of Koloras v. Dollar Tree Stores, Inc., No. 21-CV-2700 (C.P. Lacka. Co. April 19, 2022 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas continued the trend in Lackawanna County of allowing personal injury cases to proceed with allegations of recklessness regardless of the facts alleged.

In his Opinion, Judge Nealon notes that facts are not required to support claims of recklessness and/or punitive damages in any Complaint because those claims do not amount to causes of action and, are instead, claims that are derivative of other causes of action.

The court noted that the fact pleading requirements set forth under Rule 1019(a) only apply to the allegation of “a cause of action or defense.” In this Koloras case, the court ruled that under Pa. R.C.P. 1019(b), allegations of recklessness should be considered an allegation of a state of mind of a party to the action which, according to this court, may be pled generally under Pa. R.C.P. 1019(b).  In so ruling, the Lackawanna County Court of Common Pleas relied, in part, the case of Archibald v. Kemble, 971 A.2d 513, 517 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010).

While the court does refer to other trial court decisions that have sustained Preliminary Objections to punitive damages claims by finding that a Complaint lacked sufficient factual averments supporting claims of willful, wanton, or reckless conduct as set forth, this court declined to follow those cases.

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

I send thanks to Attorney Michael J. Sowinski, II, Esquire of the Wilkes-Barre, PA law office of Rosenn, Jenkins & Greenwald, LLP for bringing this case to my attention.

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

 


Wednesday, May 4, 2022

HAPPY BIRTHDAY TORT TALK!!

 



Happy Birthday Tort Talk!

Tort Talk was started 13 years ago on May 4, 2009.

With over 2,000 email subscribers and 3,500 blog posts to date, and now going on over 3.3 million views, Tort Talk is still going strong.

Thank you for your tips on notable cases and for your readership.







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


Tuesday, May 3, 2022

Summary Judgment Granted In Favor of Store Where One Customer Accidentally Hit Another With a Shopping Cart


In the case of Glidewell v. Giant Food Stores, Inc., No. 335-CV-2018 (C.P. Col. Co. Feb. 15, 2022 Norton, J.), the court granted a Defendant’s Motion for Summary Judgment in a supermarket premises liability case.

In so ruling, the court found that there were no genuine issues of any material facts in the record to demonstrate that the Defendant supermarket’s actions or inactions were a substantial factor in bringing about the injuries the Plaintiff alleged suffered when another patron allegedly hit the Plaintiff accidentally with a shopping cart while the two (2) individuals were standing in a check out line.

The court noted that the Plaintiff did not have any expert reports to suggest that a long line of shopping carts or individuals in the cash register area was a dangerous condition in a supermarket check out area. 

There was also evidence presented in the record that there were several witnesses who indicated that there was sufficient room for the person who struck the Plaintiff with the shopping cart to navigate her shopping cart around where the Plaintiff was standing at the time of the incident.

As noted, based upon the record before the court, summary judgment was granted in favor of the store.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (April 12, 2022).

Source of image:  Photo by Eduardo Soares on www.unsplash.com.

Plaintiff Failed To Establish Jurisdiction Over German Division of BMW


In the case of Mahurin v. BMW of North America, LLC, No. 2:20-CV-01351 (W.D. Pa. March 18, 2021 Hardy, J.), the court found that the Plaintiff had failed to establish jurisdiction over the Defendant, BMW, and as such, the Plaintiff’s claims against that Defendant were dismissed in this products liability action. 

According to the Complaint, the Plaintiff was involved in a motor vehicle accident. The Plaintiff alleged that the airbag released sharp metal fragments that penetrated his neck and chest area and caused additional injury. The Plaintiff sued BMW for products liability, negligence, and breach of warranty.

The Plaintiff asserted that BMW, a German company, was the parent company of another BMW entity, a Delaware limited liability company with a principle place of business in New Jersey. That Defendant filed a Motion to Dismiss for lack of personal jurisdiction.

The court granted the Motion after finding that the Plaintiff failed to sustain his burden to establish specific personal jurisdiction. The court generally noted that the Plaintiff failed to show any purposeful availment of the Defendant in terms of activity and Pennsylvania.

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


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


Source of image:  Photo by Artiom Vallat on www.unsplash.com.