Tuesday, August 30, 2022

Third Party Release Held to Bar Companion UIM Claim

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

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


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


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


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


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


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


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


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


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


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


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


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


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


Monday, August 29, 2022

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



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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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


Thursday, August 25, 2022

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


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

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

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

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

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


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

Federal Court Confirms That There is No Recognized Cause of Action for Spoliation of Evidence But...



In the case of Atlantic States Ins. Co. v. Copart, Inc., No. 5:22-CV-1177 (E.D. Pa. June 30, 2022 Leeson, J.), the court denied in part, the Plaintiff insurance company’s Motion for Summary Judgment on a claim of a breach of duty on the part of Copart to preserve a vehicle.

In this matter, a worker's compensation carrier, had paid over a million dollars to compensate an injured employee.  The employee had been involved in an accident while driving a Mack truck.  By way of subrogation, the compensation carrier brought suit against several alleged tortfeasor to recover the monies the carrier had paid out to the injured employee.

The truck at issue had been sold by Copart before the compensation carrier could complete an expert inspection of the vehicle.   As such, the carrier had to discontinue its action against the tortfeasors.

The carrier then sued Copart for the damages the carrier suffered from having to discontinue the action against the tortfeasors.  The Defendant responded with a Motion to Dismiss.  

The court noted that the Pennsylvania Supreme Court has not recognized a cause of action for negligent spoliation of evidence.

However, Judge Leeson held that, while Pennsylvania law does not impose on third parties a duty to preserve evidence, the Plaintiff could still have a cause of action for negligence generally if the court found that another duty, either contractual or otherwise, to maintain the truck involved in the accident was implicated by the facts of the case.

As such, the court denied, in part, the Plaintiff’s Motion for Summary Judgment on this basis in this matter.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 21, 2022).




Tuesday, August 23, 2022

No Medical Expert Testimony Needed To Establish Causation Where Causal Relationship is Obvious


In the case of Bixler v. Lamendola, No. 3:20-CV-01819-CCC (M.D. Pa. July 5, 2022 Connor, J.), the court denied a Defendant’s Motion for Summary Judgment in a motor vehicle accident case after finding that expert medical testimony was not required to establish causation given that the driver’s testimony would allow the jury to infer that the claimed injuries resulted from the accident.

According to the Opinion, at the time of the accident, the Plaintiff was driving an empty tractor trailer at a speed of approximately 45-50 mph when the Defendant, who was traveling in from of the Plaintiff in the same direction, attempted to make a U-turn. More specifically, the Defendant’s vehicle moved towards the right side of the road and/or the right shoulder and then, as the Plaintiff’s vehicle approached, the Defendant pulled back onto the road and attempted to turn his vehicle into the opposing lane of travel. The Plaintiff was unable to avoid a collision which occurred while the tractor trailer was still moving at about 25-30 mph.

It was noted that the vehicle that the Plaintiff was operating at the time of the accident was rendered inoperable for about four (4) months following the accident due to the damages sustained.

The Plaintiff testified that, although he was wearing a seat belt at the time of the accident, he believed he struck parts of the interior of his vehicle because he had a bump on his head as well as bumps and bruises on his knees and arm. The Plaintiff did admit that he did not immediately notice any pain and declined medical treatment at the scene of the accident. 

Approximately two (2) days later, the Plaintiff began to experience left hand numbness and then sought out medical treatment with his family doctor the day after that at which point he was referred to a neurologist and then began to treat on a continuing basis thereafter.

Post-accident diagnostic tests including x-rays, an MRI, and a nerve test lead the neurologist to diagnose the Plaintiff with a bulging disc in his neck, causing a pinched nerve, which was noted to explain the complaints of left hand numbness.

During the course of the matter, the Defendant filed a Motion for Summary Judgment arguing, in part, that the Plaintiff's failure to produce an expert medical opinion on causation defeated the Plaintiff's claim. 

The court cited to the law of Pennsylvania generally requiring expert medical opinion testimony to prove causation in personal injury cases. 

However, the court noted that expert opinion is not required if there is an obvious causal relationship between the alleged negligent act and the injury complained of. The court stated that a causal relationship is “obvious” if the injury is “either an ‘immediate and direct’ or the ‘natural and probable’ result of” the alleged negligence.

The court further noted that, in those cases in which expert testimony is not required, there are typically two common traits, that is, (1) the Plaintiff began to exhibit symptoms of the injury immediately after the accident or within a relatively short time thereafter, and (2) the alleged injury is the type that one would reasonably expect to result from the accident in question.

The court applied that law to this case and held that the record revealed facts under which expert medical testimony on causation was not required. As such, the Defendant’s Motion for Summary Judgment in this regard was denied as a jury could easily find that the Plaintiff’s injuries were the natural and probable consequence of the accident.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 21, 2022).

Plaintiff's Expert Allowed to Testify as to "Possibility" of Future Medical Care For Plaintiff


In the case of Hamm v. Perano, No. 20-CV-00598 (C.P. Lyc. Co. June 22, 2022 Lindhart, J.), the court denied Defendants’ Motion In Limine seeking to exclude the expert testimony of the Plaintiff’s medical doctor who was expected to testify as to the “possibility” that the Plaintiff would need future medical care.

This matter arose out of a premises liability incident. The Plaintiff was alleging performing yard work on property that she rented from the Defendants when she fell through an unsecured manhole cover and allegedly sustained injuries.

The Defendants asserted in their Motion in Limine that an expert opinion as to the “possibility” of medical care to take place in the future was not admissible.

However, the court agreed with the Plaintiff's argument that, under Pa. R.C.P. 223, the Plaintiff's expert’s testimony was relevant to the Plaintiff’s claim for future non-economic pain and suffering damages. 

The court more specifically noted that the relevant jury instructions incorporate Pa. R.C.P. 223.3 and instruct the jury to consider the type of medical treatment a Plaintiff has undergone and how long the treatment will be required in the future when considering whether to award future damages.

The court also emphasized that the Plaintiff clarified that she was not seeking to introduce the cost of the future treatment for direct reimbursement. Rather, she was seeking to have her expert testify as to her need for continued treatment, which the Plaintiff asserted was relevant to her pain and suffering claim.

While the court denied the Defendant’s Motion In Limine, the court noted that it would consider a request at trial for a limiting a jury instruction to clarify to the jury how they were permitted to take the evidence at issue into account in their deliberations.

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


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


Source of image:  Photo by Tara Winstead on www.pexels.com.

Monday, August 22, 2022

Monroe County Premises Liability Case Dismissed For Lack of Timely Proper Service of Original Process


In the case of Correa v. Bridge St. Apts., No. 311-CV-2021 (C.P. Monroe Co. June 15, 2022 Zulick, J.), the court dismissed a premises liability lawsuit due to the Plaintiff’s failure to serve original process in a timely fashion.

According to the Opinion, the Plaintiff allegedly fell on property owned by the Defendant owner about January 21, 2019.

Two (2) years later, and four (4) days before the expiration of the statute of limitations, the Plaintiff filed a Writ of Summons on January 15, 2021.

Plaintiff’s counsel alleged that the Writ had been served by regular mail. However, the court noted that there is no indication on the docket that the Defendants received the Writ or any other evidence to show that the Defendants received notice of the lawsuit.

On October 21, 2021, the court took judicial notice that the Writ had not been promptly served and issued an Order directing the Plaintiff to file a Motion for Special Service in the event that service was otherwise not completed within 90 days of that Order.

Thereafter, the Plaintiff filed a Praecipe to Reissue the Writ of Summons on December 15, 2021 and the Sheriff filed an Affidavit of Service on December 20, 2021 indicating that the Defendants were served on December 16, 2021.

The Defendants filed an Objection asserting that the Plaintiff did not promptly serve the Complaint and that, therefore, the Complaint should be dismissed.

Judge Arthur L. Zulick
Monroe County


Reviewing the record, Judge Arthur L. Zulick noted that service of process was not effectuated for almost eleven (11) months after the statute of limitations had run.

The court additionally noted that there was never an attempt to serve the Complaint in accordance with the Rules of Civil Procedure and there was no attempt by the Plaintiff to ensure that the method of service was correct. More specifically, the court noted that, under Pennsylvania Rules of Civil Procedure 400(a), original service by mail for an in-state Defendant was not authorized.

The court emphasized that the issue was that service was not effectuated until after the statute of limitations had already expired. The court additionally emphasized that the Plaintiff’s eleven (11) month delay demonstrated a lack of any good faith effort by the Plaintiff to properly complete service.

As such, the court granted the Defendant’s Preliminary Objections and dismissed the Complaint in its entirety.

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


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

Court Applies Criminal Acts Exclusion in Homeowner's Policy to Deny Coverage to Insured After an Altercation


In the case of Safeco Ins. Co. of Illinois v. Gasiorowski, No. 2:20-CV-03877-GAM (E.D. Pa. July 5, 2022 McHugh, J.), the court granted a homeowners insurance carrier’s Motion for Summary Judgment in this action in which the carrier sought a judicial declaration that it had no duty to defend or indemnify a Defendant in a personal injury action.

According to the Opinion, the underlying claim arose from a physical altercation with the Plaintiff that led to a criminal assault charge against the insured Defendant. The Defendant pled nolo contendere to the criminal charges.

The court found that the criminal acts exclusion in the policy barred coverage.

The court noted that, although a plea of nolo contendere to the criminal charges was not conclusive in this context, the court also found that a video of the incident showed that no reasonable juror could have found that the Defendant’s actions in assaulting the Plaintiff were justified or were in self-defense as alleged by the Defendant.

As such, the Motion for Summary Judgment was granted in favor of the carrier on the denial of coverage.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 28, 2022).


Source of Image:  Photo by Kindel Media on www.pexels.com.





Friday, August 19, 2022

Allegations of Recklessness and Claims of Punitive Damages Allowed to Proceed in a Dog Bite Case


In the case of Walsh v. Toth, No. 22-CV-96 (C.P. Lacka. Co. June 28, 2022 Nealon, J.), the court addressed Preliminary Objections in the form of a demurrer asserted by dog owners in a case in which the Plaintiff alleged that she was attacked and injured by her neighbors’ dog when she [the Plaintiff] opened the side door of her home.

The Plaintiff filed a Complaint seeking compensatory damages along with punitive damages as a result of the Defendant’s alleged negligence and recklessness.

More specifically, the Plaintiff asserted that the dog owners knew of the “dangerous, aggressive, and fearsome” dog’s “dangerous propensities” prior to the incident. 

The Plaintiff also alleged that the dog owners were aware of other neighbors’ concerns regarding the dog. 

The Plaintiff additionally asserted that the owners of the dog negligently and recklessness permitted the dog to run unattended and unleashed throughout the neighborhood with reckless disregard for others. 

The Plaintiff also alleged that the Defendants violated certain provisions of the Dog Law, in part, by failing to keep the dog confined or firmly secured within the dog owner’s premises and/or by harboring a dangerous dog with a propensity to attack people without provocation. 

In this decision, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas ruled that the Plaintiff’s claims under the Dog Law were permissible. The court additionally noted that, viewing the Complaint as a whole, the Plaintiff had provided the dog owners with adequate notice of the claims against which the Defendants must defend.

Furthermore, Judge Nealon ruled, as he has on numerous previous occasions, that, since the allegations of recklessness may be averred generally under Pa. R.C.P. 1019(b), and given that the related request for punitive damages is not a “cause of action” subject to the factual specificity requirements in Pa.R.C.P. 1019(a), the Defendant dog owners were not entitled to have the recklessness allegations and the demand for punitive damages stricken.

As such, the court overruled the Defendant’s Preliminary Objections.


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

Thursday, August 18, 2022

Supreme Court of Pennsylvania Allows Legal Malpractice Claim Based Upon Scope of a Release to Proceed


In the case of Khalil v. Williams, No. 24 EAP 2021 (Pa. July 20, 2022) (Maj. Op. by Todd), the Pennsylvania Supreme Court addressed the issue of whether the Plaintiff’s legal malpractice claims against her former attorneys were barred under the Pennsylvania Supreme Court’s previous decision in the case of Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 587 A.2d 1346 (Pa. 1991), which held that a Plaintiff could not sue his or her attorney on the basis of the adequacy of a settlement to which the Plaintiff had agreed, unless the Plaintiff alleged that the settlement was the result of fraud.

After reviewing the record on appeal before it in this case, the Pennsylvania Supreme Court ruled that the Plaintiff’s Complaint demonstrated that the Plaintiff was not merely challenging the amount of her settlement, but rather was alleging that the attorneys provided incorrect legal advice regarding the scope and effect of the Release presented by the insurance carrier. As such, the Pennsylvania Supreme Court held that the prohibition set forth in the Muhammad case on legal malpractice lawsuits based upon the adequacy of settlements was not implicated by the record in this case.

Anyone wishing to review a copy of the Majority Opinion by Justice Todd for this decision may click this LINK.


The Concurring Opinion by Justice Wecht may be viewed HERE.

The Concurring Opinion by Justice Mundy may be viewed HERE.

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

Court Rules That (Under Local Rule) Complaints Referring to Statutes Must Provide the Citation to the Statute


In the case of Comerford v. Burrier, No. 20-CV-1368 (C.P. Lacka. Co. July 22, 2022 Nealon, J.), the court addressed Preliminary Objections asserting a demurrer against claims asserted by a basketball game spectator who filed suit after she was allegedly injured while seated in the bottom row of bleachers when another fan fell onto her, allegedly due to the absence of any designated stairs or handrail for the bleachers. The lawsuit was commenced against the owner of the gymnasium and the fan who fell upon the Plaintiff.

The court denied the Defendant’s demurrer, in part, based upon the spectator’s contention that she was a “business invitee” of the owner of the premises, and in light of the owner’s obligation to protect invitees from dangerous conditions that were either known to the owner or discoverable by the exercise of reasonable care.

However, the court did note that, under previous precedent in Lackawanna County, as well as an application of Lacka. Co. R.C.P. 1019, if the Plaintiff was opting to affirmatively assert in a Complaint that a negligence claim was based upon a Defendant’s violation of a statute, ordinance, regulation, or rule, then the Plaintiff must cite to that specific statute, ordinance, regulation, or rule allegedly violated.

As such, while the owner’s demurrer to the negligence claim was overruled, the Preliminary Objections asserted by the Defendant relative to the Plaintiff’s failure to provide citations for allegedly applicable statute, ordinances, regulations, and rules was sustained.

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

Federal Court Judge Requires Citation To Statutes Referenced in Complaint


In the case of Furhman v. Mawyer, No. 1:21-CV-02024 (M.D. Pa. June 28, 2022 Kane, J.), the court declined to dismiss a punitive damages claim where the record revealed that the Defendant tractor trailer driver was facing pending criminal charges of homicide by vehicle and careless driving.

The court found that the Plaintiff had sufficiently pled that the Defendants’ actions leading to the fatal accident at issue constituted a reckless disregard of the substantial risk of a serious injury.  The Plaintiff alleged, in part, that the tractor trailer driver ran a red light while driving through town and struck the Plaintiff's vehicle, resulting in fatal injuries to the Plaintiff.

The Court noted that, while the Plaintiff had pled in the Complaint the many violations that made up the charges against the Defendant driver, the Plaintiff had not pled as to whether the Defendant driver had been formally charged.  The Court noted that it had the power to look outside of the Complaint to review documents of public record.  In doing so, the Court confirmed that the Defendant had been formally charged criminally.

Given the facts pled in the Complaint and the information gathered by the Court from a review of public records, the Court held that it would be premature to dismiss the punitive damages claims at the pleadings stage.

The court did otherwise grant in part and deny in part the Defendant’s Motion for a More Definite Statement under F.R.C.P. 12(e). 

More specifically, as to the subparagraphs of the Complaint that alleged that a Defendant breached a law or regulation, the court held that the Plaintiff should cite to the specific statute, ordinance, regulation, or rule that the Defendant was alleged to have violated.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 21, 2022).

Tuesday, August 16, 2022

Federal Court Rules That Defendant's Compliance With Industry and Gov't Standards Admissible in Products Cases



In the case of Lehmann v. Louisville Ladder, Inc., No. 21-CV-4626 (E.D. Pa. July 6, 2022 Kearney, J.), the court clarified its Motion In Limine Order. In this decision, the federal court took issue with the Superior Court’s decision in the case of Sullivan v. Werner, which is currently on appeal to the Pennsylvania Supreme Court, relative to the law applicable to products liability cases.

The federal court in this case held that evidence of a Defendant’s compliance with industry and government standards should be admissible under the Tincher case in a products liability matter.


Anyone wishing to review a copy of this decision may click this LINK.  Here is a LINK to the Court's Companion Order of July 6, 2022.

Here is LINK to the Court's July 7, 2022 Clarification Order on the issues presented.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention. I also thank Attorney Kenneth T. Newman of the Pittsburgh office of Thomas, Thomas & Hafer for advising of this decision.

Monday, August 15, 2022

PA Law Found To Apply to NJ Accident Under Choice of Law Analysis; Punitive Damages Claim in DUI Case Allowed to Proceed


In the case of Hutchinson v. Millet, No. 22-CV-1166 (C.P. Lacka. Co. Aug. 8, 2022 Nealon, J.), the court addressed choice of law questions and punitive damages issues in response to Preliminary Objections raised in a motor vehicle accident case.

According to the Opinion, this matter involved a fatal motor vehicle accident that occurred in New Jersey. 

The estate of the Lackawanna County decedent, who was killed in a New Jersey automobile accident while a passenger in a vehicle operated by a Lackawanna County resident and owned by the Defendant driver’s Lackawanna County employer, commenced this lawsuit against the deceased Defendant driver’s estate and his employer seeking to recover compensatory and punitive damages based upon alleged negligent and reckless conduct of the Defendant driver in allegedly causing the fatal collision while allegedly driving under the influence of alcohol, cocaine, and prescribed medications.

The deceased driver’s estate filed Preliminary Objections seeking to dismiss the punitive damages claims on the grounds that New Jersey law prohibits the recovery of punitive damages from a deceased tortfeasor’s estate, and also restricts an employer’s vicarious liability for punitive damages to those instances where the employer specifically authorized, ratified, or participated in the employee’s reckless conduct.

The Defendant driver’s estate alternatively argued that, even if Pennsylvania law applied, the punitive damages claims should be dismissed since the deceased Defendant driver was allegedly chargeable with nothing more than ordinary or gross negligence and such claims were insufficient to support a punitive damages claim.

In response, the Plaintiff’s estate asserted that Pennsylvania law governed and that Pennsylvania law allowed for the punitive damages claim.

Judge Terrence R. Nealon
Lackawanna County


After applying a detailed choice of law analysis, Judge Nealon ruled that Pennsylvania law controls the punitive damages issues raised by the Defendant’s Preliminary Objections.

Judge Nealon went on to note that, under Pennsylvania law, the estate of a tort victim may recover punitive damages from a deceased tortfeasor’s estate for causing an accident while operating a vehicle allegedly while impaired with alcohol or drugs. The court also noted that the employer of an allegedly intoxicated or impaired driver may be found vicariously liable for punitive damages even if that employer did not direct or ratify that reckless conduct.

As such, the court overruled the Defendant’s Preliminary Objections in the nature of a demurrer that was asserted against the punitive damages claims.

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

Thursday, August 11, 2022

County Found Immune From Liability Under Recreational Use of Land and Water Act


In the case of Clark v. Schuylkill Canal Ass’n, Inc., No. 611 C.D. 2020 (Pa. Cmwlth. June 13, 2022 McCullough, J., Wallace J., and Leavitt, S.J.) (Op. by McCullough, J.), the Pennsylvania Commonwealth Court ruled that a trial court had properly found that Montgomery County was immune from suit under the Recreational Use of Land and Water Act given that the decedent’s fatal accident, caused when a tree fell, occurred in a natural and undeveloped recreational area which came under the protection of the Act.

In so ruling, the appellate court applied the four (4) point test to consider whether the recreational use of Land and Water Act applied to protect a particular landowner from tort liability.

The court noted that these factors included: (1) the nature of the area in question, that is, whether it was urban or rural, indoors or outdoors, large or small; (2) the type of recreation offered in the area, that is, whether persons entered to participate in one of the recreational purposes listed in the Act; (3) the extent of the area’s development, that is, whether the site was completely developed and/or significantly altered from its natural state and the characters of the area’s development; and, (4) whether the area was adapted for a new recreational purpose or would be amenable to recreational purposes of the act even without alteration.

In this case, the accident occurred at a 60-arce outdoor, rural, forested area along a riverbank. The site was not largely developed or improved in any significant way or altered from its natural state in any significant manner. The area was also not adapted for any new recreational purpose. Rather, the court found that the area, which consisted of a muddy riverbank, rocks, and trees left open for those who enjoy the outdoors had dangers that were comparable to those of a natural forest.

As such, the court found that the area in question was the type of which would fall under the protection of the Act. As such, the appellate court affirmed the trial court’s finding of immunity in favor of Montgomery County.

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


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




Superior Court Addresses "Inquiry Notice" Doctrine Under Discovery Rule As Applied to Statute of Limitations in Med Mal Case


In the case of DiDomizio v. Jefferson Pulmonary Associates, No. 1999 EDA 2021 (Pa. Super. Aug. 2, 2022 McLaughlin, J., McCaffery, J., and Pellegrini, J.), the Pennsylvania Superior Court reversed a trial court’s entry of summary judgment in favor of certain Defendants in a medical malpractice case.  The trial court had based its decision upon a statute of limitations defense.

In its ruling, the court accepted the Plaintiff’s argument that the trial court had erred in relying on the case of Rice v. Dioceses of Altoona-Johnston, 255 A.3d 237 (Pa. 2021) to find that the Plaintiff, under the discovery rule affiliated with the statute of limitations analysis, had “inquiry notice” of her injury more than two years before she filed suit, making her action fall outside of the statute of limitations.

According to the Opinion, in essence, "inquiry notice" relates to facts and circumstances that would put a reasonable person on notice to inquire further as to the status of their medical condition and whether a medical error had occurred.   

According to the Opinion, the Plaintiff had a complex medical history during an approximately five (5) year period that caused her to treat with many different types of physicians under an ultimate diagnosis of lung cancer. At the relevant time, the Plaintiff was a woman in her 50s with an approximately thirty (30) year history of smoking who initially went to the hospital because she was coughing up blood. She then began a long course of testing and treating with different doctors.

The Plaintiff eventually filed a medical malpractice action alleging that certain Defendants had misdiagnosed her with a different condition and that the misdiagnosis delayed a cancer diagnosis and thereby limited her treatment options for lung cancer. 

In their defense, the hospital Defendants asserted that the Plaintiff’s claims were barred by the statute of limitations. 

In its Opinion, the Pennsylvania Superior Court reviewed the discovery rule as applied to the statute of limitations and whether or not the Rice case was factually distinguishable since there was, according to the Plaintiff, an issue of material fact as to when she could have been reasonably considered to have had notice of her possible misdiagnosis.

The trial court had accepted the argument of the hospital Defendants that the discovery rule did not toll the running of the statute of limitations because any ordinary, reasonable person who is diagnosed with lung cancer under the facts and circumstances as presented in this particular case, including the fact that the record revealed that the Plaintiff allegedly experienced the signs and symptoms of cancer earlier, possessed sufficient critical facts to put her on notice to make an inquiry of the possible misdiagnosis. 

The Defendants asserted that, since the lawsuit was not filed until more than two (2) years after the Plaintiff was placed on “inquiry notice,” the Plaintiff’s claims were time-barred.

On appeal, the Pennsylvania Superior Court reversed and found that there was much uncertainty about what was reasonable under facts of this case. The court noted that, given the lengthy history of attempted contradictory diagnoses and treatments, the date of accrual for inquiry notice purposes could not be determined as a matter of law by the trial court and that these issues should be left for a jury to decide as to when the Plaintiff reasonably knew of a medical error that could be redressed by way of a lawsuit. As such, the appellate court ruled that the trial court erred in granting summary judgment in favor of the hospital Defendants.

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


I send thanks to Attorney Anthony J. Gabriel of the Camp Hill, Pennsylvania office of Margolis Edelstein for bringing this case to my attention.

Source of images:  Photo by Lucas Vasques from www.unsplash.com.

Tuesday, August 9, 2022

Pennsylvania Superior Court Finds that Rejection of UIM Coverage At Inception of Policy Carries Through To Time of Accident


In the case of Koch v. Progressive Direct Ins. Co., No. 1302 MDA 2021 (Pa. Super. Aug. 4, 2022 Bender, P.J.E., Stabile, J., and Stevens, P.J.E.), the Pennsylvania Superior Court reversed a trial court’s Order which both denied the carrier’s Motion for Summary Judgment and granted a Plaintiff’s Motion for Summary Judgment on issues regarding the availability of UIM benefits under the circumstances presented.

According to the Opinion, this matter arose out of a motor vehicle accident during which the Plaintiffs were located on a motorcycle. The third party tortfeasor paid the available liability limits of $15,000.00 to each of the two Plaintiffs. 

At the time of the accident, the Plaintiff’s motorcycle had been covered by a policy which provided bodily injury coverage of $100,000.00 each person and $300,000.00 each accident.  However, uninsured and underinsured motorist coverage had previously been rejected on the policy.

The Plaintiffs presented at demand to the carrier for bodily injury and UIM benefits. Progressive refused to pay the requested UIM benefits based upon its assertion that the Plaintiff had signed a valid waiver form rejecting UIM coverage.

When the carrier denied coverage, the Plaintiff filed a breach of contract action in which action it was requested that the trial court make a determination as to the availability of the UIM coverage.

By way of background, the carrier asserted that the Plaintiff originally rejected UIM coverage at the inception of the policy.  At the time the policy was sold, the carrier was then identified as Progressive Halcyon Insurance Company.  Although Progressive Halcyon changed its name to Progressive Direct thereafter, the Plaintiff maintained his policy with this company for various motorcycles. 

Progressive asserted that the Plaintiff’s rejection of UIM coverage at the inception of the policy remained effective and carried forward through the addition and deletion of different motorcycles to the policy as the Plaintiff never affirmatively changed this designation of rejecting UIM coverage.

The Plaintiff presented evidence of a telephone conversation he had with a representative of Progressive Direct about nine months before the accident during which the Plaintiff sought out information on purchasing additional coverage for his motorcycle. However, during that phone conversation only uninsured motorist coverage was discussed and not underinsured motorist coverage. At the end of the phone call, the Plaintiff added uninsured motorist coverage to his motorcycle policy.

At the trial court level, the trial court found that the Progressive representative had misled the Plaintiff during this phone call and created and incongruous uninsured motorist coverage and underinsured motorist coverage selection process when the representative discussed uninsured protection but failed to advise the Plaintiff of the option of underinsured motorist coverage in response to the Plaintiff’s inquiry about purchasing additional coverage.  As such, the trial court concluded that the Plaintiff had not made a “knowing waiver” of UIM coverage. The trial court therefore found that the rejection of UIM form that the Plaintiff had signed years before during the inception of the policy was void under the Motor Vehicle Financial Responsibility Law. As such, the trial court had determined that there was available UIM coverage under the policy that was in place at the time of the accident.

As noted, the Pennsylvania Superior Court reversed on appeal.

On appeal, with regards to the allegation that the Plaintiff was misled, the appellate court noted that the Plaintiff’s Complaint did not seek to find the carrier liable on a tort theory of misrepresentation, but rather was a Complaint based on a claim of breach of contract.

Moreover, the Plaintiff did not allege that the Progressive representative was negligent or had established a fiduciary relationship with the Plaintiff during the telephone call regarding possible increased insurance coverages. As such, the appellate court limited its review as to whether summary judgment was appropriate in the context of a breach of contract claim.

The Superior Court reviewed §1731 of the Motor Vehicle Financial Responsibility Law, which requires carriers to provide the insured with specific information as to the availability of uninsured and underinsured motorist coverage.  That statute also mandates that a rejection of uninsured and/or underinsured motorist coverage must be confirmed in writing with certain stated language in prominent type and location.  Section 1731 requires carriers to secure this written waiver of coverage in order to confirm a knowing and voluntary rejection of each type of coverage by the insured.

Here, in this case, the appellate court noted that the carrier had produced a valid, signed rejection form from the Plaintiff that complied with §1731. The court noted that the record confirmed that, although the carrier changed its name over the years, that name change did not result in the creation of a new company. It was also noted that the Plaintiff’s policy remained the same throughout the years.

It was also emphasized at the appellate level that the carrier had presented evidence that it had consistently sent the Plaintiff policy renewals which repeatedly advised the Plaintiff that the Plaintiff had rejected UIM coverage.

The Superior Court noted that, in interpreting §1731, the appellate courts of Pennsylvania have held that an insured’s affirmative decision to waive UIM coverage is presumed to be in effect throughout the lifetime of that policy until that decision on coverage is “affirmatively changed” by the insured. See Op. at 13.

The appellate court also emphasized that the language of §1731 specifically provides that any person who completes a valid waiver form rejecting uninsured or underinsured coverage under §1731(b)-(c) is “precluded from claiming liability of any person based upon inadequate information.” Id

Furthermore, the Court also noted that, under §1791 of the Motor Vehicle Financial Responsibility Law, once the mandates of §1731 are met in terms of a valid waiver form, no other notice or rejection shall be required. Id.

In the end, the court found that, based upon Pennsylvania case law and the language of §1731, the UIM rejection forms signed by the Plaintiff at the beginning of the policy remained valid such that the Plaintiff was not entitled to UIM coverage at the time of the accident. As such, the trial court’s decision was reversed.

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


I send thanks to Attorney David R. Friedman of the King of Prussia office of the Forry Ullman law firm for bringing this case to my attention.

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

Retained Control Theory Used By Court to Deny Landowner's Motion For Summary Judgment in Premises Liability Case


In the case of Miller v. Kinley, No. CV-20-1214 (C.P. Lyc. Co. May 5, 2022 Tira, J.), the court denied a Motion for Summary Judgment filed by Defendant landowners in the case in which a Plaintiff who was hired to cut down a large tree on the property was injured in the process.

According to the Opinion, the Plaintiff alleged, and offered proof, that the Defendant landowners were present at the time of the incident and that they directed the Plaintiff on the manner in which to cut the tree. The Defendants also specifically indicated the area where the tree was to be dropped. It was therefore alleged by the Plaintiffs that the Defendant landowners had retained control of all, or at least, a portion, of the work that the Defendants had requested the Plaintiff to perform.

In his Opinion, Judge Tira referred to the Retained Control Theory found under the Restatement (Second) of Torts §414 to rule that the evidence raised issues of fact that allow the Plaintiff to overcome the Defendant’s Motion for Summary Judgment on the liability issues presented.

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


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

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

Monday, August 8, 2022

ARTICLE: Dicta, Dicta, Dicta: Innocent Victim Plaintiffs and the Fair Share Act

 This article of mine was published in two parts in the Pennsylvania Law Weekly in July and August of 2022 and is republished here with permission:



Dicta, Dicta, Dicta: 
Innocent Victim Plaintiffs and the Fair Share Act 




By Daniel E. Cummins | July 21, 2022

Daniel E. Cummins, Clarks Summit firm Cummins Law. Courtesy photo


Part One of the Article (published July 21, 2022)

Since the effective date of the Fair Share Act over a decade ago, the act has been applied in Pennsylvania without much controversy. Then, in dicta found in the Pennsylvania Superior Court’s decision from last year in the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), that court raised, on a seemingly sua sponte basis, the proposition that the Fair Share Act should not apply in cases involving innocent victim plaintiffs.

Examples of cases where a plaintiff may be an innocent victim include cases where a plaintiff is a guest passenger in a vehicle involved in an accident, or cases where a plaintiff struck while walking in the crosswalk with the pedestrian light in his favor, or a in claims involving plaintiffs who are the victims of negligent medical care while under anesthesia. As such, this dicta could come into play in a number of scenarios going forward.

While in English Literature, as per poet Gertrude Stein, “a rose is a rose is a rose,” in the law, at least up until recently, dicta is dicta is dicta. It seems that the unfortunate and troublesome liberalization of the meaning and scope of previously concrete terms and tenets that is becoming more and more common in society in this day and age is spilling over into the jurisprudence of Pennsylvania law, including with regards to the concept of dicta.

In this regard, the notion that the Fair Share Act does not apply when an injured party plaintiff is an innocent victim of the negligence of another seems to be gaining steam in recent several state and federal court decisions despite the fact that this notion is based upon dicta initially espoused in the Spencer decision. More specifically, certain court decisions referencing the Spencer decision have described the Superior Court’s review of the issue in Spencer as something other than dicta, with some of those courts even going so far as to describe that dicta as amounting to a “holding” on the issue of whether the Fair Share Act applies to innocent plaintiffs. This is made more troublesome by the possibility that the dicta in question from the Spencer case was wrongly decided.

The Fair Share Act

Under the “old” rule of joint and several liability that existed before the 2011 effective date of the current Fair Share Act, if any defendant was found to be even only 1% responsible for causing an accident, that defendant could be compelled to pay the entire verdict (and to, thereafter, seek a reimbursement of its overpayment from any other responsible co-defendant). This rule of law applied regardless of whether a plaintiff was an innocent victim or not.

Under the Fair Share Act, found under the amended 42 Pa.C.S.A. Section 7102, it became Pennsylvania law in 2011 that each defendant would instead only be responsible to pay their “fair share,” that is, the percentage of the verdict that a jury had assessed to that defendant.

There were specific exceptions written into the law by the General Assembly. If any one defendant was found to be 60% or more responsible for the happening of an accident, then that defendant would be responsible to pay the entire verdict (and to, thereafter, be able seek a reimbursement of its overpayment from any other responsible co-defendant).

There are also other express exceptions written into the Fair Share Act by the legislature as well, including an exception in cases involving dram shop claims, to name another one.

‘Spencer v. Johnson’

From 2011 forward, the Fair Share Act was applied for a decade without much controversy. That all changed with the Pennsylvania Superior Court’s decision in the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021). In Spencer, an innocent plaintiff pedestrian alleged personal injuries as a result of being struck by a vehicle while the plaintiff was crossing the street within a crosswalk. The case involved three defendants.

The issue on appeal in this case focused on the extent to which a plaintiff could request that the percentages of different defendants could be added together, under theories of vicarious liability, in order that a plaintiff may come up with a combined amount of a 60% percentage of liability that could thereby allow a plaintiff to potentially be in a position to compel a deep pocket defendant to pay the entire verdict under the 60% exception found under the Fair Share Act.

Over the first approximately 26 pages of the Superior Court’s opinion in Spencer, the court accepted the plaintiff’s argument that the employee defendant’s negligence should be imputed to the defendant employer’s negligence because the defendant employee was acting within the scope and course of her employment with the employer at the time of the accident. The Superior Court reversed and remanded the case to the trial court for further proceedings with regard to a molding of the verdict in terms of the percentages of responsibility. The above decision represented the holding of the Spencer court in this case. One would think that, with the issue before the court having been decided, the court’s opinion would end at that point.

But the Pennsylvania Superior Court in Spencer was apparently not finished with its opinion in the case before it. Rather, on a seemingly sua sponte basis, the appellate court went on to note, “assuming arguendo,” that is, assuming for the sake of argument, that a different set of hypothetical facts applied, the court would have gone on to decide additional issues that were not then before the court. In other words, the court was offering up dicta.

More specifically, the court in Spencer raised the hypothetical of a different situation, that being of a defendant employer who was found by the jury not to be vicariously liable for the actions of its employee such that those defendants were instead required to be treated separately. The court in Spencer noted in this dicta, that, under that different scenario (which was not before that court), the Fair Share Act would not have applied because, according to the Spencer court, the Fair Share Act only applied to cases in which the plaintiff’s comparative negligence was an issue in the case, that is, cases where the plaintiff was assessed a percentage of responsibility for causing his own accident. Stated otherwise, in its sua sponte dicta, the court in Spencer stated that the Fair Share Act was not applicable in cases involving innocent plaintiffs.

Is the ‘Spencer’ Dicta Even Valid?

In addition to these additional superfluous statements by the court in Spencer amounting to dicta, questions also remain as to the validity of that court’s notion that the legislature intended that the Fair Share Act not apply to innocent plaintiffs. The Spencer court stated that, in its reading of the history and structure of the Fair Share Act, the court found “no indication that the legislature intended to make universal changes to the concept of joint and several liability” in cases involving innocent plaintiffs.

Yet, there can be no question that the legislature did make universal changes to the concept of joint and several liability with the passage of the Fair Share Act. Prior to the act, any defendant found to be 1% responsible for a plaintiff’s injuries, could be made to pay the entire verdict. After the passage of the Fair Share Act, each defendant, unless they were found to be 60% or more liable, would only have to pay their percentage share of the verdict. The old rule of liability was turned upside down and eradicated across the board by the new Fair Share Act.

Why would the legislature pass a “Fair Share” Act to apply to personal injury matters but still intend to require a defendant found only 1% liable to be unfairly responsible to pay the entire verdict simply because a plaintiff was not found to be negligent?

Also, as noted, the General Assembly wrote several express exceptions into the actual wording of the Fair Share Act. It therefore stands to reason that, if the legislature wanted to carve out another exception applicable to cases involving innocent plaintiffs, the General Assembly would have expressly written such an exception into the Fair Share Act to join the other exception already contained in the act.

The rhetorical question becomes, if the legislature did not expressly write such an exception into the act, is it the place of the courts to do so?

In part two of this article, I will discuss the loose language of dicta and whether change is on the horizon.



Part Two of the Article (published August 4, 2022)


As discussed in part one of this article, since the effective date of the Fair Share Act over a decade ago, the act has been applied in Pennsylvania without much controversy. Then, in dicta found in the Pennsylvania Superior Court’s decision from last year in the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. 2021), that court raised, on a seemingly sua sponte basis, the proposition that the Fair Share Act should not apply in cases involving innocent victim plaintiffs.

In this regard, the notion that the Fair Share Act does not apply when an injured party plaintiff is an innocent victim of the negligence of another seems to be gaining steam in recent several state and federal court decisions despite the fact that this notion is based upon dicta initially espoused in the Spencer decision.

In part two of this article, I will discuss the loose language of dicta and whether change is on the horizon.

Loose Language Morphing Dicta Into a ‘Holding’?

Despite the questionable validity of the dicta of the Spencer v. Johnson case in this regard, judges in more recent decisions have referred to the dicta found in Spencer regarding the alleged inapplicability of the Fair Share Act to cases involving innocent plaintiffs as a “holding” of the Spencer court.

In the case of Snyder v. Hunt, 268 A.3d 416 (Table)(Pa.Super. 2021), an unpublished decision, a different panel of the Pennsylvania Superior Court than that in the Spencer case addressed issues raised on appeal from a nonsuit entered in favor of the defendants in a trip-and-fall case.

Of note, on appeal, the Pennsylvania Superior Court remanded the case back down to the trial court for further trial proceedings against certain defendants, some of whom had not appeared for the first trial. With regards to those defendants, the appellate court noted that, under Spencer, since those defendants had not alleged, or offered proof, as to any negligence on the part of the plaintiff, “the Fair Share Act, 42 Pa.C.S.A. Section 7102, [did] not shield them from the common law of joint and several liability under Spencer.”

In this regard, the court in Snyder specifically cited to the Spencer decision and, in a parenthetical attached to that citation, described the Spencer decision as “holding that ‘there is no indication the legislature intended to make universal changes to the concept of joint and several liability outside of cases where a plaintiff has been found to be contributorily negligent.’”

It may never be known if the use of the term “holding” to describe this portion of the Spencer decision was intentional by the Pennsylvania Superior Court in Snyder or, rather, a simple, casual reference to the decision for purposes of including a parenthetical in the citation. Regardless, members of the plaintiff’s bar are sure to continue to pounce on the same in an effort to turn the dicta of the Spencer decision into precedential law going forward.

The possible migration of the dicta at issue in the Spencer case towards a precedential holding has also been exhibited in the recent federal court case of Anderson v. Motorists Mutual Insurance, No. 2:21-CV-00493-CCW (W.D. Pa. June 22, 2022 Wiegand, J.).

A Bold Prediction Based on Dicta

In the Anderson case, the court addressed the issue raised as to the amount of the credit to which the UIM carrier was entitled in a personal injury matter. As part of the analysis the court addressed novel arguments raised under the Fair Share Act.

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, as the UIM carrier, denied the plaintiff’s 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.

In this Anderson case, 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 equal only to the amount the plaintiff was legally entitled to recover from the joint tortfeasors, that is, the sum of the lesser 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. The plaintiff asserted 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 because the 60% exception to the Pennsylvania Fair Share Act was not met.

The court applied Pennsylvania law and noted that there was no controlling Pennsylvania Supreme Court precedent on the issue of the enforcement of exhaustion 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 inapplicable, 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 Anderson case held that it did not need to decide whether the Pennsylvania Fair Share Act altered Boyle’s holding. In dicta, the court in Anderson more specifically stated that, even assuming that the enactment of the Pennsylvania Fair Share Act served to alter Boyle’s holding, the plaintiff’s argument still failed 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.”

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 had found, “as an alternative holding,” that for the “Fair Share Act to apply, the plaintiff’s negligence must be an issue in the case.”

The court in Anderson additionally pointed to the above-referenced case of Snyder v. Hunt in support of this proposition as well.

Notably, the court in this Anderson case boldly, and perhaps incorrectly, predicted that, if faced with this issue, “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.”

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 Anderson 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.

Is Change on the Horizon, or a Correction?

As noted, the first decade of the life of the Fair Share Act was largely without controversy until the Pennsylvania Superior Court’s sua sponte dicta in the case of Spencer v. Johnson unfortunately came along.

It remains to be seen whether any future court, squarely faced with this issue, would ultimately validate the dicta of the Spencer court or would, instead, leave the legislating to the legislature and rule that, if the General Assembly intended that the Fair Share Act not apply to innocent plaintiffs, then such an exception would have been specifically written into the act.

In the meantime, in light of the controversy created by the dicta in the Spencer v. Johnson decision, litigants and the trial courts are now unfortunately left to struggle over the scope and ambit of the previously clear terms of the Fair Share Act until concrete appellate guidance is otherwise provided.


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.

Friday, August 5, 2022

Court Rules that Party Cannot Be Compelled To Produce That Which They Do Not Possess


In the case of Fost v. Kennedy, No. 5:21-CV-03262-JMG (E.D. Pa. July 11, 2022 Gallagher, J.), the court addressed various discovery issues in response to a Motion to Compel filed in a trucking accident case.

In its decision, the court ruled that a Plaintiff is entitled to timely answers to its punitive damages discovery.

However, the court also noted that a Defendant cannot be compelled to produce documents that do not exist.

The court otherwise found that the Plaintiff’s demand for hundreds of hours of videotape of the employee’s truck driving was denied as being disproportionate.

The court additionally found the Plaintiff’s request for the production of information regarding similar incidents for years predating the hiring of the employee that the Plaintiff’s claims were negligently hired was also disproportionate.

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


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

Wednesday, August 3, 2022

Summary Judgment Granted to Gym and Landlord in Slip and Fall Case


In the case of Rifkin v. Fitness International, LLC, No. 19-CV-5686 // 20-CV-4547 (E.D. Pa. June 15, 2022 Sitarski, J.), the court granted summary judgment in favor of the possessor of land in this slip and fall case.
According to the Opinion, the Plaintiff slipped and fell in the locker room of the gym.

The court found that, based upon the record developed during discovery, that the out-of-possession landlord did not retain control over the premises and/or the area where the Plaintiff fell.   

As such, the court found that the landlord-defendant was entitled to summary judgment.    

 Anyone wishing to review a copy of this decision may click this LINK.  Here is a LINK to the court's companion Order.


In a separate Opinion issued by the same court in the same case on the same date, the court granted summary judgment to the gym, which was the tenant-defendant, as well.

In that decision, the court initially noted that issues of fact on the issue of whether the Plaintiff had signed a waiver form when he joined the gym precluded the entry of summary judgment in favor of the gym in that regard.  

However, the court found that the tenant-defendant was entitled to summary judgment on other grounds.

In its decision, the court stated that, absent any evidence of prior similar incidents in the same location, a Plaintiff cannot establish actual notice on the part of the possessor of land in a slip and fall case.

The court additionally found that the Plaintiff failed in proving any constructive notice in this case where the Plaintiff did not know what caused him to fall, let alone how long any such condition was present.

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


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

Source of image: Photo by Ron Lach on www.pexels.com.