Thursday, June 30, 2022

Trial Court Opines That Defendant's Appeal From Order Dismissing Defendant's Objections to Jurisdiction Should Be Quashed


In the case Galette v. New Jersey Transit, No. 200800610 (C.P. Phila. Co. May 31, 2022 Crumlish, J.), the trial court filed a Rule 1925 Opinion to the appellate court recommending the dismissal of the Defendant’s appeal from the trial court’s Order dismissing the Defendant’s objections to jurisdiction.

It was the position of the trial court that the Order dismissing the Defendant’s objection to jurisdiction was appealable only under Pa.R.A.P. 311(b) and that the requirements of that Rule had not been met. 

According to the Opinion, this matter arose out of a personal injury action filed by the Plaintiff against the Defendant New Jersey Transit, and another Defendant. According to the lawsuit, the Plaintiff was injured while sitting in a parked vehicle in the City of Philadelphia when that vehicle was allegedly struck by a bus operated by one of NJ Transit’s employees.

The Defendant, NJ Transit, objected to the court’s jurisdiction over it through a Motion to Dismiss. That Motion was denied and NJ Transit filed an appeal, which prompted this Opinion by the court.

The trial court noted that an Order denying a Motion to Dismiss is ordinarily interlocutory and, therefore, not appealable unless expressly made so by statute.

In its Opinion, the court cited to Pa.R.A.P. 311, which lists the interlocutory appeals that may be taken as a right, and Pa.R.A.P. 312, which allows for interlocutory appeals by permission.

Under Pa. R.A.P. 311(b), an appeal is allowed as a right when a trial court’s Order overruled Preliminary Objections to the trial court’s in personam or in rem jurisdiction and either the Plaintiff elected to treat the Order as final or the trial court stated in the Order that a substantial issue of jurisdiction existed.

Given that these requirements were not met, and given that the Defendant, NJ Transit, did not otherwise seek leave of court to file an interlocutory appeal, or request an Order stating that a substantial issue of jurisdiction was presented, the trial court noted that the appeal should be quashed by the Pennsylvania Superior Court.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 7, 2022).




Wednesday, June 29, 2022

Court Finds No Valid Cause of Action Against Insurance Agent for Negligence


In the case of The Original Apostolic Faith Church v. Geico, No. April Term, 2019 No. 04027 (C.P. Phila. Co. March 23, 2022 Djerassi, J.), the trial court, in a Rule 1925 Opinion, ruled that a Plaintiff could not maintain negligence claims against the retail insurance agent and the wholesale insurance broker that the Plaintiff had used to secure commercial insurance policy as those two parties did not owe the Plaintiff any duty to review or provide advice upon notice of a renewal of the policy.

The court also found that those two Defendants did not owe the Plaintiff any duty to assist the Plaintiff in finding any replacement coverage.

As such, the trial court requested the Superior Court to affirm the trial court’s entry of summary judgment in favor of the Defendants.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (June 7, 2022).



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

Tuesday, June 28, 2022

Pennsylvania Supreme Court Agrees to Review the Validity of the Regular Use Exclusion


In an Order handed down yesterday, June 27, 2022, the Pennsylvania Supreme Court agreed to hear an appeal from the Pennsylvania Superior Court's decision in the case of Rush v. Erie Insurance Exchange finding that the Regular Use Exclusion in automobile insurance policies violates the Pennsylvania Motor Vehicle Financial Responsibility Law.

Here is a LINK to the Pennsylvania Supreme Court's June 27, 2022 Order granting the appeal.

To view the Pennsylvania Superior Court's decision in the Rush case, please click HERE.

Here is a LINK to my recent March 31, 2022 article from the Pennsylvania Law Weekly entitled "The Regular Use Exclusion May Not Be So Regular Anymore."

To review other Regular Use cases and articles on the topic, please go to the Tort Talk Blog at www.TortTalk.com, scroll down to the Labels section on the right hand column and then scroll down alphabetically to the Label for "Regular Use Exclusion" and click that Label.


I send thanks to Attorney Glen Shikunov of the Philadelpha office of McCormick & Priore for bringing this update to my attention.

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

Monday, June 27, 2022

"Innocent Plaintiff" Fair Share Act Argument Gains Steam (Via More Dicta)


In the case of Anderson v. Motorists Mut. Ins. Co., No. 2:21-CV-00493-CCW (W.D. Pa. June 22, 2022 Wiegand, J.), the court addressed the issue raised by the parties as to the amount of the credit to which the UIM carrier was entitled in this particular claim.  As part of the analysis the Court addressed novel arguments raised under the Fair Share Act.

According to the Opinion, this case arose out of a fatal motor vehicle accident. 

After the accident, the Plaintiffs sued the third party tortfeasor and settled those claims. The Plaintiffs then filed a claim for UIM benefits with Motorists Mutual.

Motorists Mutual denied the claim on the basis that the value of the claim did not exceed the combined $5.1 million liability limits of the various third party tortfeasors.

With regards to the coverages at issue in the third party liability side, the Plaintiff was a passenger in a vehicle in which the operator of that vehicle was covered under a liability policy providing $100,000.00 in liability coverage.

The other vehicle involved in the accident was owned by a trucking Defendant who had liability limits of $1 million dollars as well as an umbrella policy with an additional $4 million dollars in coverage.

The Plaintiff settled the third party claim securing the $100,000.00 policy limit that covered the vehicle in which the Plaintiff is located at the time of the incident. The Plaintiff also settled against the trucking company for $55,000.00. Motorist Mutual consented to those settlements.

The court noted that, under the Motorist Mutual UIM endorsement, it was provided that the carrier would pay UIM benefits if “[t]he limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgements or settlements….”

In this matter, Motorists Mutual contended that it should receive a credit of $5.1 million dollars, which was the sum of all of the liability limits at issue (excepting a City of Pittsburgh policy limit, which was handled by the parties and the Court separately).

The Plaintiff was seeking a partial summary judgment under an argument that, unless Motorists Mutual could prove that the trucking Defendants’ percentage of fault equaled or exceeded 60%, Motorists Mutual should only be entitled to a credit equaled only to the amount the Plaintiff was legally entitled to recover from the joint tortfeasors, that is, $650,000.00, which was the sum of the amounts actually paid in settlement on the third party side by the operator of the vehicle in which the Plaintiff is located and the trucking Defendants. 

More specifically, the Plaintiff was contending that the UIM carrier must prove that the trucking Defendants’ liability equaled or exceeded 60% in order for the UIM carrier to claim the full credit of $5 million dollars under that third party Defendants’ policies. The Plaintiff went on to argue that, if the UIM carrier was unable to establish this proof, then the UIM carrier should only be entitled to a credit of the amount paid pursuant to the settlements because the Plaintiff would have been unable to recover the full amount of damages from the trucking Defendants under the Pennsylvania Fair Share Act.

The court applied Pennsylvania law and noted that there was no controlling Pennsylvania Supreme Court precedent on the issue of the enforcement of exhausting clauses concerning UIM benefits. However, it was noted that the Pennsylvania Superior Court had decided a number of cases in this regard, including the case of Boyle v. Erie in which the Superior Court held that a UIM carrier was entitled to the full amount of any liability limits that were available on the third party side.

The Plaintiff attempted to assert that the Boyle decision was in applicable, in part, due to the underlying policy concerns and Boyle being no longer applicable due to the passage of the Pennsylvania Fair Share Act.

The court in this matter held that it did not need to decide whether the Pennsylvania Fair Share Act altered Boyle’s holding.

The court more specifically stated that, even assuming that the enactment of the Pennsylvania Fair Share Act altered Boyle’s holding, the Plaintiff’s argument was still noted to fail because “it is not clear that the Pennsylvania Fair Share Act applies where the Plaintiff’s negligence is not in question, as is the case here.” See Op. at 13. 

In this regard, the court in this matter pointed to the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021). The court in this Anderson case stated that, in the Spencer case, the Pennsylvania Superior Court found, “as an alternative holding,” that for the “Fair Share Act to apply, the Plaintiff’s negligence must be an issue in the case.” See Op. at p. 13, citing Spencer at 559.

The court additionally pointed to another Pennsylvania Superior case on that similar issue and citing to the Spencer case. See Snyder v. Hunt, No. 851 EDA 2020, 2021 Pa. Super. Unpub. LEXIS 2993, at *14-15 (Pa. Super. Nov. 10, 2021).

The court in this Anderson case predicted that “because the decedent’s negligence is not at issue in this case, the Pennsylvania Supreme Court would find that the Fair Share Act does not apply in cases such as this one, where the Plaintiff’s negligence is not an issue, and, as a result, that the traditional principles of joint and several liability would control."  See Anderson Op. at 14.

Under this analysis, the court in Anderson held that it did not need to decide whether the Fair Share Act altered Boyle’s holding. 

The court went on to find that the language of the exhaustion clause in this case compelled the court to rule that the UIM carrier was indeed entitled to a credit for the full amount of the liability limits available in the underlying third party case (excepting those liability limits possessed by the City of Pittsburgh).

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 McDonald Hudock Guthrie & Rauch, P.C. for bringing this case to my attention.

Source of image:  Photo by Ekaterina Bolovtsova on www.pexels.com.

Thursday, June 23, 2022

Negligence Claim Asserted Against Carrier Dismissed in Bad Faith Action



In the case of Moravia Motorcycle, Inc. v. Allstate Insurance Company, No. 2:21-CV-01274 (W.D. Pa. May 9, 2022 Dodge, M.J.), the court addressed a Motion to Dismiss a bad faith claim relative to an insurance policy issued by Allstate for damage to the Plaintiff’s motorhome during the course of a storm.

At issue in this case was a Motion to Dismiss the Plaintiff’s claims for negligence and bad faith.

Relative to the bad faith claims, the court found that the conflicting information provided by Allstate to the Plaintiffs was sufficient to support the bad faith claim presented.

However, the court dismissed the Plaintiff’s allegations that Allstate was negligent by misrepresenting the status of the policy, failing to fully advise them of the actual terms of the coverage and other similar allegations of negligence.

Allstate otherswise sought the dismissal of the negligence claims under the gist of the action doctrine and for lack of specificity.

The court dismissed the negligence claim but allowed the bad faith claim to proceed.

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.

Wednesday, June 22, 2022

A Continuing Trend of Claims Representative Depositions Being Allowed in Luzerne County


Luzerne County Courthouse

In each of the following three (3) Orders (without Opinion) out of the Luzerne County Court of Common Pleas, the court ruled that the claims representatives handling the case for the Defendant’s liability carrier was required to attend a deposition requested by Plaintiff’s counsel. 
However, the court did note that the Plaintiff would be precluded from questioning the claims representative as to the claims representative’s mental impressions, conclusions, or opinions respecting the value or merit of any claim, any defense thereto, or respecting strategy or tactics with respect to any claim or defense:


The court Order in Ehrmanntraut v. People’s Security Bank and Trust Co., No. 4995-CV-2020 (C.P. Luz Co. Nov. 15, 2021 Hughes, J.), may be viewed at this LINK.


The court Order in Harenza v. House, No. 2019-CV-10883 (C.P. Luz Co. Dec. 2, 2021 Pierantoni, J.), may be viewed at this LINK.


The court Order in Stochla v. Fenner, No. 2019-CV-11607 (C.P. Luz. Co. May 26, 2022 Polachek-Gartley, J.), may be viewed at this LINK.

Tuesday, June 21, 2022

ARTICLE: Justice Delayed Is Still Compensable: Courts Rule on Damages During Shutdowns

Justice Delayed Is Still Compensable: Courts Rule on Damages During Shutdowns


By Daniel E. Cummins | June 09, 2022

Pennsylvania Law Weekly


Daniel E. Cummins












Now that more and more cases are reaching verdict on this side of the COVID-19 pandemic, the issue of whether or not the shuttering of the court system in Pennsylvania during the course of the pandemic should be considered in the calculation of delay damages in personal injury matters has come to the forefront.


In the decisions handed down so far by the trial and appellate courts, the ruling has been that defendants are not vaccinated against having to pay additional damages on personal injury awards to cover the interest owed to the plaintiff from the time after the suit has been filed up to the time of the verdict.


Delay Damages Under Rule 238


Under Pa.R.C.P. 238(a)(1) it is provided that, “at the request of the plaintiff in a civil action seeking monetary relief for bodily injury … damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury … and shall become part of the verdict, decision or award.”


The recognized, but arguably ineffective, purpose behind the delay damages rule found at Pa.R.C.P. 238 is to “alleviate court congestion by promoting earlier settlement of claims.”  See Schrock v. Albert Einstein Medical Center, 589 A.2d 1103, 1106 (Pa. 1991).


Under the rule, a trial court may award delay damages even if the defendant did nothing to delay trial, if trial was delayed because of a crowded docket, or due to other factors which were not the fault of the plaintiff or any party. 


Pick Up the Phone


In the case of Yoder v. McCarthy Construction, May Term 2018, No. 0769 (C.P. Phila. Co. Feb. 10, 2022 Foglietta, J.), Judge Angelo J. Foglietta of the Philadelphia Common Pleas Court issued a prescient Rule 1925 opinion requesting the Pennsylvania Superior Court to affirm the trial court’s rulings during the course of a personal injury trial that resulted in a $5 million verdict of the plaintiff.


In Yoder, 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 confirmed that delay damages are appropriate due to cover any delay that was not the fault of any party. The court found that a court closure due to a pandemic fell within this definition. 


Referencing the goal of the delay damages rule in promoting settlement discussions, 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.” 


Foglietta reasoned 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 of being excused from paying delay damages when the underlying purpose of delay damages is to discourage dilatory conduct during the course of a personal injury litigation.


It’s the Plaintiff’s Money


In the case of Getting v. Mark Sales & Leasing, 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 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.


This case arose out of an accident during which the plaintiff was injured while using a rider mower rented from the defendant company. While the plaintiff was using the mower on a hill on his property, the mower rolled over and injured the plaintiff.


In post-trial motions that dealt, in part, with the plaintiff’s claims for delay damages, the defense asserted that delay damages should not be imposed against the defendant during the time period of the judicial emergency that was declared by the Pennsylvania Supreme Court on March 16, 2020, and extended by the trial court until the time of trial in this case.


The Pennsylvania Superior Court noted that, two days after it declared a judicial emergency on March 16, 2020, the Pennsylvania Supreme Court issued a March 18, 2020, order in which the courts in the commonwealth of Pennsylvania were closed, jury trials were suspended, and all events on the calendars of the courts were postponed.


The Superior Court confirmed that there were only two recognized periods of time that may be excluded from the calculation of delay damages: “any periods of time after which the defendant has made a written offer of settlement, the offer is continued in effect for at least ninety days or until the commencement of trial, whichever occurs first, the offer is rejected by the plaintiff, and the plaintiff does not recover more than 125% of the offer; and any periods of time during which the plaintiff caused the delay of the trial.” See Getting at p. 16 citing King v. SEPTA, 557 A.2d 11, 12-13 (Pa. Super. 1989) (en banc). In that previous King case, the Superior Court confirmed that Rule 238 has “not allowed for the exclusion of periods of delay not caused by either party.  


After reviewing the case before it and the applicable law, the Superior Court noted that the defense was not making a request to be excused from paying delay damages based upon either of the two recognized bases noted above. Accordingly, the appellate 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.


The court in Getting noted that the plaintiffs had the right to be made whole for their injuries by an application of the delay damages rule. The court additionally noted that the COVID-19 pandemic and the ensuing judicial emergency it created did not prevent the defendants from engaging in settlement talks or making reasonable offers in an effort to try to alleviate the courts dockets.  


The court noted that the record before it confirmed that the plaintiff and the defendant had actually engaged in settlement talks during the pandemic. As such, the court in Getting pointed out that “simply because the flow of cases had temporarily stopped, it does not follow that all legal practice also ceased.” The court noted that the Defendant remained free at all times during the judicial emergency to increase its settlement offer to induce the plaintiffs to settle and thereby assist the defendant in avoiding additional delay damages.


The Superior Court otherwise indicated that the defendant was not entitled to an unjust windfall from the five-month delay caused by the judicial shutdown. Rather, the Superior Court in the Getting case noted that the defendant retained the unfettered use of the “plaintiff’s money throughout the judicial emergency.” As such, the Superior Court felt it appropriate that the defendant “must compensate the plaintiffs for using the plaintiff’s money during the judicial emergency” and thereby must pay the plaintiff to the fullest extent allowed under Pa.R.C.P. 238. 


Plan on Paying Delay Damages


Based upon the few cases handed down to date, it appears that the trial and appellate court judges will be rejecting efforts by defendants to point to the COVID-19 pandemic as a reason to suspend the application the interest allowed over time under Pa.R.C.P. 238 in terms of delay damages. Rather, it appears that the courts of Pennsylvania will be enforcing a plaintiff’s right to recover delay damages in personal injury matters.


Such a ruling applicable to the back end of personal injury litigations appears to be consistent with those other rulings by the courts of Pennsylvania applicable to the front end of cases in which the courts have refused to cut plaintiffs a break relative to service of process issues based upon delays caused by the pandemic.


In other words, in terms of the impact of the pandemic on Pennsylvania civil litigation matters, the courts, so far, have followed the principle that what’s good for the goose is good for the gander.


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.


Monday, June 20, 2022

Post-Injury Waiver of Liability Agreement Allowed to Stand (For the Most Part)


In the case of Pavlak v. Coolican, No. 21-CV-3060 (C.P. Lacka. Co. May 25, 2022 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed issues related to a post-injury Release/Settlement as compared to a pre-injury exculpatory agreement.

By way of background, the Plaintiff in this matter, who had dental implants inserted and later removed by the Defendant dentist, executed a “refund of money and release of liability” agreement under which the dentist refunded the Plaintiff’s earlier payment for the implant procedures in exchange for a General Release from liability or any claim related to those dental services.

In this matter, the Plaintiff commenced a declaratory judgment action asserting that the refund/release Agreement was unenforceable as being in violation of Pennsylvania public policy and due to the lack of supporting consideration.

The Plaintiff’s public policy argument was based upon the provision in the agreement which prohibited the Plaintiff from filing an administrative complaint with the State Board of Dentistry.

The court found that this provision barring the Plaintiff from filing a Complaint or providing additional information to the State Board of Dentistry was void as being against clearly expressed public policy as set forth under The Dental Law found at 63 P.S. §122,123.1, and the corresponding regulations which are intended to protect the health, safety, and welfare of the public.

However, Judge Nealon found that the invalid provision of this agreement was not an essential part or primary purpose of the Refund and Release Agreement and that, as such, that invalid provision could be severed from the remaining terms.

The court then found that the remaining terms of the agreement, including the Release from liability in exchange for the refund of the money, were indeed enforceable. The court found that, since the dentist was not legally obligated to refund the Plaintiff’s prior payment, the dentist experienced the required detriment in order to provide consideration to support this agreement.

As such, the court granted the Motion for Judgment on the Pleadings to the extent that it sought a judicial determination that the provision barring the Plaintiff from filing an administrative complaint was unenforceable on public policy grounds. However, the Motion for Judgment on the Pleadings was denied in all other respects and the agreement was otherwise allowed to stand.

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

Source of Image:  Photo by Nick Fewings on www.unsplash.com.

Friday, June 17, 2022

Allegations of Recklessness and John/Jane Doe Allegations Allowed To Proceed

 THIS IS THE 300th TORT TALK BLOG POST IN WHICH JUDGE TERRENCE R. NEALON HAS BEEN REFERNCED, MOST OF WHICH BLOG POSTS INVOLVED A SUMMARY OF A JUDICIAL OPINION OF HIS.


In the case of Webb v. Scranton Quincy Hospital Company, No. 21-CV-4073 (C.P. Lacka. Co. June 10, 2022 Nealon, J.), Judge Terrence R. Nealon issued the following notable rulings regarding preliminary objecctions filed by Defendants in a medical malpractice case:

-Overruling preliminary objections to claims of recklessness on the grounds that such claims may be generally pled under Pa.R.C.P. 1019 and given that the facts pled in the Plaintiff's Complaint supported such claims in any event;

-Overruling preliminary objections asserting that the Plaintiff's allegations are too vague after finding that the Plaintiff's lengthy Complaint provide the Defendants with adequate notice of the corporate liability, negligence, and recklessness claimss against the Defendants, as well as with respect to the averments regarding the hospital's corporate owner and with respect to the regional hospital system.

-The court also found that the Plaintiff's Jane/John Doe averments in the Complaint satisfied the requirements of Pa.R.C.P. 2005 in order to properly designate an unknown defendant by a Doe designation.

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

Anyone wishing to review this Opinion may click this LINK.

Thursday, June 16, 2022

Superior Court Rules that Trial Court Should Have Stricken Default Judgment Entered Against Defendant


In the case of Penn National Mut. Cas. Ins. Co. v. Phillips, No. 1480 MDA 2021 (Pa. Super. May 17, 2022 Stabile, J., King, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court reversed a trial court’s denial of a Defendant’s Petition to Strike or Open a Default Judgment entered against him.

This case arose out of an insurance company’s subrogation action for property damages arising out of a motor vehicle accident. The Plaintiff carrier filed a Complaint against a Defendant and asserted that the Defendant lived at an address in North Carolina.

The carrier filed an Affidavit of Service by mail and sought a default judgment when the Defendant did not respond. The default judgment was entered.

Thereafter, when counsel for the Defendant entered an appearance and filed a Petition to Strike or Open the Default Judgment, that Petition was denied by the trial court.

The Superior Court ruled that the trial court erred in denying the Defendant’s Petition to Strike the Default Judgment because the 10-Day Notice was defective on its face and violated Pa. R.C.P. 237.1(a)(2). More specifically, the court noted that the Plaintiff failed to attach to the Praecipe to Enter Judgment either the 10-Day Notice or a certification that they sent written notice of their intention to file a Praecipe for Default Judgment.

The Superior Court also agreed with the Defendant’s argument that the language in the Plaintiff’s 10-Day Notice was also defective in that it did not substanially comply with Rule 237.5.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 31, 2022).
 



Wednesday, June 15, 2022

ARTICLE (REPRINT): A MID-YEAR TUNEUP

 As we already rounding the mid-point of the year, I thought I would republish the below article of mine from the June 30, 2008  edition of the Pennsylvania Law Weekly:


A Mid-Year Tuneup
Ten tips to improve your practice and reduce stress

By

Daniel E. Cummins, Esquire
Pennsylvania Law Weekly
June 30, 2008

There is no better time of year than the month of June, when thoughts are beginning to turn to the salty air and sandy beaches at the shore or the cool breezes and lapping lakefronts in the mountains of Pennsylvania, to take a moment to rededicate oneself to the goal of improving one's practice while at the same time reducing any unnecessary stress. The following tips are suggested in this regard.

ANTICIPATE

By routinely looking ahead 30 to 45 days on the calendars, conflicts and deadlines will never creep up on you and cause unnecessary stress.

In terms of scheduling conflicts, looking ahead and clearing up problems is not only respectful of the schedule of opposing counsel, but can also serve to avoid delays and keep the case moving steadily towards its eventual resolution.

In terms of deadlines 30-60 days out on the horizon, it may be advisable to start the first draft of a brief or an arbitration/mediation memorandum whenever time permits. In that way, there will be time to put the brief aside to be researched, edited, and rewritten on a few additional occasions at your leisure as opposed to a last-minute dash to scrap together a superficial document that merely scratches the surface of the issues presented. By starting early on a written product, and revisiting it periodically with additional research and editorial touches, an attorney can guarantee his or her client a thoroughly advocated and a well-written presentation of the client's position to the court.

A MONTHLY GLANCE

Another way to stay on top of each and every file in your practice is to literally “glance” in the file once a month with a portable Dictaphone in hand. An easy way to remember to do this is to set yourself up to automatically complete this task either on the first day or the last day of every month.

While looking at each and every file during a single run-through once a month may sound like a daunting task at first, once you have looked at the file in this manner several months in a row, the status of file will become committed to memory and your review will move more quickly. In fact, by the third or fourth month of completing this monthly glance at the file, it will literally take only a few seconds to look at the correspondence section of each file to determine what has been done and what needs to be done in the file to keep it moving forward in an expeditious manner for the benefit of the client. Additionally, many files that are “hot” and on the front-burner to begin with, will need little or no review.

This method of regularly viewing the file allows the attorney to dictate quick letters to the opposing counsel or the client, or memos to the file, regarding the status of the case and items to be completed. Those letters and memos, in turn, will trigger the responses and further activity necessary to keep the file moving forward in a continual fashion.

A regular course of reviewing each file will also enable the handling attorney to impress others with the attorney's ability to discuss the status of the file off the top of his or her head during a cold telephone call from a client or opposing counsel. Last, but not least, this method of regularly reviewing files may also satisfy one's obligations to stay on top of one's files as may be required under the attorney's legal malpractice policy in any event.

Any thought that this type of a proactive, periodic review of files would be too time-consuming should be tempered with the acknowledgment that much more time is wasted by the reactive method of retrieving and digging through files only at times when updates or other action is required.

RETURN CALLS PROMPTLY

A common complaint of clients and attorneys is the failure of other attorneys to return phone calls promptly or at all. First and foremost, the failure to return a phone call, even from an adversary you can not stand to speak to, is just simply rude.

Obviously, a claim will become stagnant when phone calls seeking the information necessary to move the matter forward go unanswered. In terms of phone calls from clients, attorneys should remain mindful of the ethical duty to keep the clients informed as to the status of their case.

As hard as it may be to return a call to a vexatious adversary, one way to get over the reluctance to return the call is to realize that each communication with that person brings you one step closer to concluding the file and your dealings with that individual. If one simply can not stand any more contact with another individual than is necessary, then at least a response in writing should be offered.

Note also that the quick and consistent return of all phone calls will also serve to earn the attorney the favorable reputation as a courteous and responsive person who is motivated to move the file to its conclusion. One possible added benefit of returned phone calls to clients may also be that the client may call the attorney less as the client may feel updated on their case.

RESPOND TO MAIL

Another way to stay on top of matters and keep them moving is to respond to all mail, whenever possible, on the day it arrives. Immediately responding to mail on the day it arrives will keep the file moving forward in an expeditious manner and prevent matters from falling through the cracks.

Like returning phone calls, a prompt response to a letter is courteous to the sender and also signals that one has a common interest in moving the case towards a resolution.

READ UPDATES

Staying on top of the law will also enable a lawyer to stay one step ahead of opposing counsel. By remaining well-versed in the current status of the law, one will better serve the client and be less uncertain when engaging in legal arguments with opposing counsel.

Rather than passively skimming the case updates in Pennsylvania Law Weekly and the PBA Bar News , a better practice may be to actively committing the changes in the law to memory by typing up a running list of recent cases in one's computer. Another good source of new case law and citations is the blue-covered advance sheets for the Atlantic Second Reporters.

The computer list of saved case citations could be alphabetically broken down in to large topics like “Automobile Law,” “Civil Procedure,” “Dog Bite,” “Evidence,” and the like, with each section being broken down in to subparts in accordance with subheadings that may be found in the headnotes or descriptions stated in the case summaries.

It may also be advisable to read, or at the very least skim, the Pennsylvania Rules of Civil Procedure once a year. Not only does this practice refresh one's understanding of the Rules but it may also surprisingly result in new knowledge concerning certain aspects of civil procedure.

Remaining well-versed in the Rules of Civil Procedure and the changes in Pennsylvania case law may enable counsel to stay a step ahead of any opposing counsel and will foster a reputation of one being well-versed in the law and rules of procedure.

ARRIVE EARLY

Obviously it is always a good idea to be on time for any appointment or appearance as a matter of courtesy, as part of the effort to make a good first impression, and to avoid any unnecessary increasing of one's own stress level.

Arriving at least 15-20 minutes early for any meeting will allow for time to get set up and comfortable. By arriving early, one can have all their materials out and arranged on the table in an orderly fashion. This may serve to avoid the sometimes embarrassing situation of the need to scramble through the file in an effort to locate a particular item.

Arriving early will also enable the attorneys to deal with any preliminary issues. Agreements and stipulations can be reached or reaffirmed, thereby streamlining the proceedings.

Perhaps most importantly, by arriving early, an attorney may be less harried and, therefore, calmer going into the session. This will always prove beneficial, particularly if the attorney is in the presence of a client who will be reassured by the confident and composed presence of the attorney.

DON'T TAKE IT PERSONALLY

There may be nothing more important to the practice of law than the principle that decisions to be made should never be motivated by personal feelings or emotions, but rather should always be the result of a sound, objective business-like decision-making process.

All too often, attorneys take the actions and adverse positions of opposing counsel personally and retaliate without first thinking through and formulating an appropriate response on an objective basis and in accordance with the law and facts of the case. Sometimes it is a good idea to trash that hasty and curt first draft of a responsive letter so as to avoid a confirmation that the tone of the litigation will remain extremely adversarial.

It is particularly important to remain objective when evaluating cases for settlement purposes and in engaging in settlement negotiations. Emotions have no place during settlement negotiations but can run high and get in the way of an objective evaluation of a case's range of value.

The pros and cons of a case can not be properly and professionally evaluated if one's judgment is clouded by emotionally charged and negative feelings towards another attorney, that attorney's client, and/or that attorney's case or argument. Where it is difficult to separate one's self from an emotional assessment of the value of a case, it may be wise to run the case by another attorney or, even better, a lay person for a fresh and objective viewpoint.

Last but not least, litigating attorneys should also never take on the emotional trappings of their clients or let such emotions get in the way of an objective application of the law to the facts of the case at hand. In addition to being advocates, attorneys are also expected to be counselors for their clients always at the ready to counsel them towards an amicable resolution of the issues presented.

VOLUNTEER

In addition to assisting clients with their legal matters, an attorney may also obtain personal gratification and improve the image of the practice as a whole by taking on pro bono cases within the scope of their expertise wherever possible.

Equally gratifying is the participation in volunteer activities in the community. In addition to benefiting local charities and communities, volunteer efforts also have the added benefit of networking and free advertisement. By participating in charitable activities, one can not only possibly gain some exposure with the general public but may also serve to improve public image of all attorneys.

SCHEDULE 'ME' TIME

It should also be kept in mind that lawyers are not just lawyers. They may also be identified as mothers, fathers, friends, musicians, artists, or sports enthusiasts, etc. An effort to be good in all aspects of life outside of the law results not only in a sense of accomplishment but also makes for a more fulfilling existence.

Whenever possible, a balance between work and life outside of work should be sought and encouraged. An attorney who spends most or all of his waking hours in the practice of law runs the significant risk of burning out and losing touch with who else they are.

It is important to schedule so “me” time on a daily, or at the very least, several times a week basis. It is only common sense that attorneys who strive to expand their life outside of the practice of law, in terms of their hobbies, recreational activities, physical fitness, and in exploring creative outlets, are more apt to have a higher level of productivity at work as well.

It is also noted that engaging in some of the proactive tips noted above may provide the comfort the comes with knowing that one's files are updated and moving ahead so as to allow counsel to be more willing to let go of work issues and more fully enjoy one's free time.

VACATION

Similarly, when the above proactive tips for file monitoring and updating are utilized, one may be able to go away on vacation with the comfort and security of knowing that there is a lesser chance that a “fire” will arise that could serve to dampen one's enjoyment of the vacation or even cause the trip to be cut short.

Obviously, the practice of law can be an extremely stressful 24/7 profession. Spending and enjoying more time away from the practice and one's home base can serve as a release from the pressures of work and lessen one's overall stress level. This, in turn, could result in a healthier lifestyle. A more healthy lifestyle, in turn, may render one a more productive and efficient attorney. In the end, all aspects of life, both in and out of work, will benefit.

As difficult as it may sometimes be, it should be kept in mind that the practice of law is but one dimension of our short lives.

Efforts to realize a more healthy and balanced life by spending more quality time with your family and friends outside of and away from work will add life to one's years during our short time on this planet. Again, it is only common sense that a well-rounded lifestyle that includes regular vacationing may also result in one becoming a more productive and effective attorney in the end.''

Daniel E. Cummins is a partner in the Clarks Summit, PA law firm of Cummins Law.  He additionally provides mediation services through Cummins Mediation.  He is also the sole creator and writer of the Tort Talk Blog found at www.TortTalk.com



READY TO BRING YOUR CASE TO A CLOSE?

 


(570)-319-5899


dancummins@CumminsLaw.net

Tuesday, June 14, 2022

Trial Court Rules in Favor of Discoverability in Med Mal Case of Notes Made By Patient Safety Director


In the case of Ford-Bey v. Professional Anesthesia Services North America, LLC, No. 2017-Civil-02996 (C.P. Montg. Co. March 23, 2022 Saltz, J.), the court found, in a medical malpractice action, that the notes made by a hospital employee were not protected by the confidentiality provisions of the medical care availability and reduction of error (MCARE) Act because the notes were not made for the sole purpose for complying with the patient safety reporting requirements of the MCARE Act.

According to the Opinion, this was a medical malpractice case arising from the death of the decedent after surgery.

The Defendant hospital objected to the Plaintiff’s discovery requests for notes made by the patient safety director that were prepared during a root cause analysis of the incident.

The court granted the discovery requests and ordered that the documents be produced. The hospital filed an appeal and the court issued this Rule 1925 Opinion.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 3, 2022).


Source of image:  Photo by National Cancer Institute on www.unsplash.com.






Sunday, June 12, 2022

Judge Nealon of Lackawanna County Notes That Direct and Vicarious Theories May Be Pursued Against Employer For Negligence by Employee


In the motor vehicle accident case of Shaver v. Levelle, No. 21-CV-2465 (C.P. Lacka. Co. May 26, 2022 Nealon, J.), the defendant-motorist’s employer filed preliminary objections seeking to dismiss plaintiff’s claims for negligent entrustment, hiring, and training as legally insufficient since the motorist admitted that he was an employee of the employer at the time of the accident. 

Judge Nealon reviewed the law on this issue in detail and noted that several federal district courts and at least one common pleas court have, in the past, dismissed claims against employers for negligent hiring, training, and supervision in cases of admitted agency, and have done so on the basis that no Pennsylvania appellate court has ever held that a plaintiff may simultaneously pursue claims against an employer for vicarious liability and direct liability in cases where an employer-employee relationship is admitted. 

Judge Terrence R. Nealon
Lackawanna County


















Judge Nealon found that those previous court decisions that have gone the other way on this issue were negated by the Pennsylvania Supreme Court's decision in Scampone v. Highland Park Care Center, LLC, 57 A.3d 582 (Pa. 2012), the Pennsylvania Supreme Court rejected the argument that a plaintiff is barred from pursuing a direct negligence claim against a corporate employer if it acknowledges that the employee was acting within the course of employment at the time of the tort.  That Court concluded that “direct and vicarious theories of liability are grounded in distinct policies and serve complementary purposes in the law of torts,” and that they may be “asserted either concomitantly or alternately” even in cases of undisputed agency. 

Judge Nealon found that, since the federal and state trial court rulings cited by the defendant-employer “are contrary to the Supreme Court reasoning in Scampone,” the Defendant's preliminary objection was overruled.

Anyone wishing to review this decision may click this LINK.

Wednesday, June 8, 2022

Bad Faith Claim Dismissed Relative to Homeowner's Insurance Claim Following a Hurricane


In the case of Smith v. Allstate Insurance Company, No. 2:21-CV-05048-JP (E.D. Pa. May 9, 2022 Padova, J.), the court addressed a Motion to Dismiss a bad faith claim filed by the Defendant in a case in which the Plaintiff asserted claims for breach of a homeowners insurance policy and bad faith relative to damage caused to the Plaintiff’s property by a hurricane.

The court found that the Plaintiff’s allegations in the Complaint regarding the carrier’s alleged unresponsiveness to the Plaintiff, investigator failures, dilatory conduct, and unsubstantiated coverage denials provided a sufficient factual basis to survive the carrier’s Motion to Dismiss.

As such, the carrier’s Motion to Dismiss was denied.

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


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

Trial Court Addresses Issues Regarding Denial of Coverage Under Homeowner's Policy



In the case of Watkins v. State Farm Fire and Casualty Co., No. 10363 of 2020-CA (C.P. Lawr. Co. April 19, 2022 Motto, P.J.), the court granted a Defendant carrier’s Preliminary Objections to a Plaintiff’s claim for negligence and breach of fiduciary duty relative to the sale of a homeowner’s insurance policy that ended up not providing the Plaintiff with coverage for a fire loss.

In its decision, the court found that the Plaintiff’s claim for negligence against his insurance company was barred by the gist of the action doctrine.

The court additionally found that the Plaintiff’s Complaint did not allege sufficient facts to allow the Plaintiff to move forward on a breach of fiduciary duty claim against the carrier in connection with the sale of the insurance policy. The court noted that, by asserting the right to handle all claims against the insured, the insurance company assumed a fiduciary duty and was obligated to act in good faith and with due care towards its insured. However, the court noted that the courts in Pennsylvania did not impose a fiduciary duty upon an insurance company merely for selling a policy of insurance to an insured.

The court found that the Plaintiff’s Complaint did not allege any facts to show that the Defendant insurance company or its agents applied any undue influence over the Plaintiff. As such, the court found no basis to support an allegation of an existence of a fiduciary duty under the facts alleged. As such, the Defendant’s Preliminary Objections were sustained in these respects and the Defendant was ordered to file an answer to the remainder of the Plaintiff’s Complaint.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 31, 2022).

Tuesday, June 7, 2022

Corrected Link to Meyers v. Travelers Ins. Co. Stacking Case


The Link in yesterday's Tort Talk Blog post for the case of Meyers v. Travelers Ins. Co. did not work and has been corrected below.  Sorry for any confusion or consternation caused.

In the case of Meyers v. Travelers Ins. Co., No. 21-3291 (E.D. Pa. April 6, 2022 Beetlestone, J.), the court granted the Defendant carrier’s Motion for Summary Judgment after finding that non-stacked underinsured motorist coverage limiting recovery to the highest applicable limit of any other second-priority policy was consistent with the stacking waiver statute under the Pennsylvania Motor Vehicle Financial Responsibility Law as well as with public policy interests. 


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

Eastern District Court Addresses UIM Stacking Issue


In the case of Meyers v. Travelers Ins. Co., No. 21-3291 (E.D. Pa. April 6, 2022 Beetlestone, J.), the court granted the Defendant carrier’s Motion for Summary Judgment after finding that non-stacked underinsured motorist coverage limiting recovery to the highest applicable limit of any other second-priority policy was consistent with the stacking waiver statute under the Pennsylvania Motor Vehicle Financial Responsibility Law as well as with public policy interests. 

In this matter, the injured party was involved in a motor vehicle accident. The injured party then filed insurance claims under six (6) different policies.

The injured party received the policy limit of the tortfeasor’s policy but that amount was allegedly insufficient to cover her for her claims.

The injured party then sought to recover underinsured motorist benefits.

The injured party was a named insured on four (4) policies that offered UIM benefits. The injured party first covered under the policy that covered her car that was involved in the accident. She additionally recovered additional amounts in stacked UIM benefits from two (2) other policies.

The Plaintiff then sought to recover UIM benefits from this Defendant carrier, who had issued a policy to the Plaintiff’s mother, with whom the Plaintiff resided at the time of the accident.

However, the Plaintiff’s mother had waived stacking.

The carrier asserted that the Plaintiff was only entitled to recover a lesser amount due to an “other insurance” in the policy, which implemented the stacking waiver by limiting UIM coverage to the highest limit applicable under any of the Plaintiff’s second prior policies.

Because the Plaintiff had already recovered from her second priority carriers, the Defendant in this matter concluded that it was only obligated to pay at 17% pro rata share of the available limits under the Plaintiff’s second prior policy.

The Plaintiff asserted that the policy clause at issue in the Travelers’ policy was void and unenforceable and that the offset sought by Travelers should be against the total value of her claim and not the total amount of coverage.

The court rejected the Plaintiff’s argument. The court held, in part, that the Plaintiff’s argument would effectively eliminate stacking waivers. The court additionally found the policy language at issue to be consistent with the public policy interest as the decrease in the carrier’s exposure was the result of the Plaintiff’s mother having waived stacking and receiving a lower premium amount as a result.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 3, 2022).




Friday, June 3, 2022

Exculpatory Clause in a Lease Found To Apply Only to Injuries Suffered Inside Plaintiff's Apartment And Not to Slip and Fall in Parking Lot of Complex


In the case of Lower v. Nevil, No. CV-153-2020 (C.P. Snyder Co. May 6, 2022 Sholley, P.J.), the court denied a Motion for Summary Judgment in a slip and fall case that occurred at an apartment complex.

The Plaintiff allegedly sustained injuries when she slipped and fell as she walked around her car in the parking lot of a small apartment complex at which she resided. She sued the Defendant landowner for personal injuries.

After discovery was completed, the landlord filed a Motion for Summary Judgment relying upon the hills and ridges doctrine and also asserting that an exculpatory clause in the residential lease relieved the Defendant from any liability.

The court found that issues of fact prevented the entry of summary judgment relative to the hills and ridges doctrine. 

With regard to the exculpatory clause in the lease agreement, the court rejected the Plaintiff’s claim that the lease was a contract of adhesion but accepted the Plaintiff’s argument that the exculpatory clause of the lease only applied to release the landlord from any liability for any injuries that occurred inside the specific apartment rented by the Plaintiff and not with respect to the common areas and/or parking lot where the Plaintiff actually fell. As such, the court denied summary judgment in this regard as well.

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

Source of image:  Photo by Asael Pena on www.unsplash.com.

Thursday, June 2, 2022

New Monetary Limit for Rule 1311.1 Appeals From Arbitrations Set to Go Into Effect on July 1

In an Order that goes into effect on July 1, 2022, the Pennsylvania Supreme Court will put into place a new rule amending Pennsylvania Rule of Civil Procedure 1311.1 to change the maximum limit of what a plaintiff may elect as the value of damages that they can recover in a trial on appeal from an arbitration award.

Under the current rule, that limit was set at $25,000.

Under the new rule, the maximum limit will be changed to "an amount equal to the jurisdictional limit for compulsory arbitration of the judicial district in which the action was filed."

While different judicial districts have differing jurisidicational limits for arbitration, that limit is capped at $50,000 under Section 7361 of the Judicial Code.


Source:  Article:  "New Arb Appeal Awards Rule Aims to Reduce Apparent Defense Bias." by Aleeza Furman of the Pennsylvania Law Weekly (May 31, 2022).

Source of image:  Photo by Sasun Bughdarvan on www.unsplash.com.

Wednesday, June 1, 2022

Please Consider Registering for the Lackawanna Pro Bono Golf Tournament (or just the CLE and Lunch)


 

A Post-Koken Decision in Favor of Severance Out of Westmoreland County



In the case of Levis v. Kilbert, No. 5576-Civil-2019 (C.P. West. Co. May 6, 2022 Hathaway, P.J.), the court issued an Order only in a post-Koken litigation addressing Preliminary Objections in which the court sustained the tortfeasor Defendant’s assertion of a misjoinder of actions in terms of the negligence claim against the tortfeasor and the breach of contract UIM claim against the carrier and ordered that the claims be severed into two (2) separate lawsuits.


I send thanks to Attorney Diana M. O’Connell of the Pittsburgh, PA law firm of Robb Leonard Mulvihill, LLP for brining this case to my attention.



According to the Tort Talk Post-Koken Scorecard that makes at least 25 County Courts in favor of the severance of Post-Koken claims and at least 24 County Courts in favor of the consolidation of Post-Koken cases.

We continue to await for appellate guidance on this issue.