Wednesday, November 30, 2022

GODFATHER CLE IS THIS FRIDAY, DECEMBER 2d -- STILL TIME TO REGISTER

 



LESSONS FROM THE GODFATHER

An entertaining one hour ethics CLE that takes famous quotes from the movies that make up The Godfather Trilogy and applies them to the practice of law.

by

Daniel E. Cummins, Esq.

CUMMINS LAW

FRIDAY, DECEMBER 2, 2022

Noon to 1 p.m.

(1 Ethics CLE)


Live in the Presidents' Room in the Law Library in the Luzerne County Court House

and also 

via ZOOM


Technology Assistance to be provided by


CLE is Free for W-BLLA Members

$35.00 for Non-Members


TO REGISTER GO TO www.Luzernecountybar.com

(When registering, please be sure to provide your name and Attorney ID Number)

All payments must be received 48 hours in advance of the program


To pay by check:  Please mail check payable to the 

"Wilkes-Barre Law and Library Association."

Mail to the Law Library at: 

W-BLLA

Room 23

200 North River Street

Wilkes-Barre, PA 18711


If you have any questions, please call Gail Kopiak at

(570) 822-6712 or email Gail at 

Gail.Kopiak@luzernecounty.org

Content of UIM Waiver Form Upheld By Third Circuit (Not Precedential)



In the case of Keeler v. Esurance Insurance Services, Inc., No. 21-2449 (3d Cir. Oct. 18, 2022 Jordan, J., Porter, J., and Phipps, J.) (Op. by Phipps, J.) (marked “Not Precedential), the Third Circuit Court of Common Pleas affirmed a district court’s ruling in favor of the UIM carrier and found that the carrier was correct in its denial of coverage and that the Plaintiff’s bad faith claim was without merit.

According to the Opinion, this case involved a claim for UIM benefits related to a collision between a motorcycle and a motor vehicle.

The Plaintiff’s injuries allegedly exceeded the Defendant driver’s liability insurance coverage limit and, as such, the motorcyclist and his wife sought UIM benefits under their own motorcycle insurance policy issued by Esurance.

However, the record before the court confirmed that, when the Plaintiffs originally purchased that policy, they expressed waived UIM coverage in writing. As such, the carrier refused to pay.

The Plaintiffs sued and asserted that the waiver could not be enforced and that, as a result, they should be entitled to a bad faith recovery due to an alleged improper denial of coverage.

As noted, the court disagreed and found that the waiver of UIM coverage signed by the Plaintiff was proper and met the requirements of 75 Pa. C.S.A. §1731. The Third Circuit agreed with the district court’s finding that the UIM rejection form satisfied the prominent-type-and-location requirements in terms of the language of the waiver form.

The Third Circuit also agreed with the district court’s decision that any alleged violations of the renewal noticed provision were not remediable through a civil action.

Note that the household exclusion was not at issue in this case because the Plaintiffs were trying to seek UIM benefits under their own motorcycle policy that covered the motorcycle that the Plaintiff was operating at the time of the accident.  In other words, the Plaintiffs were not attempting to recover UIM benefits under some other policy covering some other vehicle in the household.

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


I send thanks to Attorney Joseph Hudock of the Pittsburgh office of the law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C.

Tuesday, November 29, 2022

Arbitration Agreement Bars Lawsuit in Case Involving a Fall From a Truck


In the case of Waters v. Express Container Services, 2022 Pa. Super. 182 (Pa. Super. Oct. 18, 2022 Collins, J., Olson, J., Dubow, J.) (Op. by Collins, J.), the Pennsylvania Superior Court found that a Plaintiff was bound by the arbitration provisions of an equipment lease for the truck he was inspecting at the time of the accident such that the Plaintiff was required to arbitrate his claims for personal injury instead of pursuing them by way of a lawsuit.

According to the Opinion, the Plaintiff was allegedly injured when he fell from a catwalk on the top of a tanker-trailer that he was inspecting at a trucking terminal.   

In its decision, the Pennsylvania Superior Court re-affirmed the notation that Pennsylvania law favors the enforcement of the arbitration agreements.  This was particularly so where the validity of the arbitration agreement in this case was undisputed.

The court stated that a contract clause in this matter, which required the arbitration of any claims arising out of or relating to the contract, also served to cover tort or other non-contract causes of action.

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


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

Western District Federal Court Addresses Alleged Bad Faith Issues in UIM Context



In the case of Alag v. Geico, No. 22-155 (W.D. Pa. Nov. 16, 2022 Lenihan, M.J.), a federal district magistrate judge for the Western District of Pennsylvania addressed various issues in a motor vehicle accident UIM claim with allegations of bad faith.

The court granted the carrier’s Motion to Dismiss the Plaintiff’s claim for breach of the covenant of good faith dealing.

However, the court denied the Motion to Dismiss relative to the bad faith claims and the allegations of violations under the Unfair Trade Practices Act and Consumer Protection Law.

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


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

Federal Court Rejects Claim that Section 1716 of MVFRL Could Be Considered As Supporting Allegations in a UIM Bad Faith Claim


In the case of Deal v. Nationwide, Prop. & Cas. Ins. Co., No. 2:22-CV-01269-MH (W.D. Pa. Oct. 31, 2022 Horan, J.), the court granted in part and denied in part a UIM carrier’s Partial Motion to Dismiss that was filed in a bad faith claim. 

After finding that the Plaintiff had stated a valid statutory bad faith claim such that that part of the Defendant’s Motion to Dismiss should be denied, the court did grant a dismissal of the Plaintiff’s UTPCPL claim in that the Plaintiff had failed to allege specific representations that Nationwide had allegedly made they sold the policy to the Plaintiff.

Of note, the Plaintiff’s claim of a violation of  the mandates of 75 Pa. C.S.A. §1716 by the UIM carrier was dismissed. The court noted that §1716 of the MVFRL dealt with first party benefits.

The Plaintiff’s argued that UM benefits should be considered to be a hybrid of first-party and third-party claims and, therefore, should be entitled to the protections afforded under §1716.  The court rejected this argument.

The court noted that the MVFRL was organized into subchapters with each chapter dealing with a separate type of benefits., including a separate chapter on UIM benefits.

The court found that §1716 fell under the subchapter for first-party benefits.

Accordingly, the court ruled that §1716 plainly could not apply to UM benefits, which were covered by their own separate subchapter under the MVFRL.

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


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

Monday, November 28, 2022

Civil Litigant Permitted to Assert Fifth Amendment Right Against Self-Incrimination in a Personal Injury Case


In the case of Whitcher v. Zimmerman, No. 2022-C-0339 (C.P. Leh. Co. Oct. 25, 2022 Varricchio, J.), the court issued a detailed Order denying a Plaintiff’s Motion to Compel and upholding a Defendant’s right to assert his Fifth Amendment privilege against self-incrimination.

According to the Order, this case involved a motor vehicle accident with possible allegations of driving under the influence. The Defendant driver had previously pled guilty to the charge of careless driving in connection with the accident.

The Plaintiff asserted that, as such, the Defendant driver could not face any further criminal charges.

In response, the Defendant driver asserted that it was certainly possible for him to face additional criminal charges related to the accident based upon any newly discovered or disclosed evidence that could come out during the course of discovery during this civil litigation matter.

In ruling on the Motion, the court noted that the statute governing when a subsequent prosecution is barred by a former prosecution for a different offense, contains certain exceptions.  One exception was when the offense of which the Defendant was formerly convicted or acquitted was a summary offense or a summary traffic offense.

Given this set of facts, the court applied the applicable standard of review and noted that it was not “perfectly clear” that the Defendant driver would not possibly face additional criminal charges related to the accident based upon his provision of information in discovery. 

As such, the court found that the Defendant driver’s assertion of the Fifth Amendment right against self-incrimination was reasonable. Therefore, the court denied the Plaintiff’s Motion to Compel the Defendant driver to respond to certain discovery requests.

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

Source of image:  Photo by Anthony Garand on www.unsplash.com.

Still Time To Register For the Lessons From The Godfather CLE Set For This Friday (Attend via Zoom or Live)

  



LESSONS FROM THE GODFATHER

An entertaining one hour ethics CLE that takes famous quotes from the movies that make up The Godfather Trilogy and applies them to the practice of law.

by

Daniel E. Cummins, Esq.

CUMMINS LAW

FRIDAY, DECEMBER 2, 2022

Noon to 1 p.m.

(1 Ethics CLE)


Live in the Presidents' Room in the Law Library in the Luzerne County Court House

and also 

via ZOOM


Technology Assistance to be provided by


CLE is Free for W-BLLA Members

$35.00 for Non-Members


TO REGISTER GO TO www.Luzernecountybar.com

(When registering, please be sure to provide your name and Attorney ID Number)

All payments must be received 48 hours in advance of the program


To pay by check:  Please mail check payable to the 

"Wilkes-Barre Law and Library Association."

Mail to the Law Library at: 

W-BLLA

Room 23

200 North River Street

Wilkes-Barre, PA 18711


If you have any questions, please call Gail Kopiak at

(570) 822-6712 or email Gail at 

Gail.Kopiak@luzernecounty.org

Ready to Bring Your Case To a Close Before the End of the Year

 



(570)-319-5899


dancummins@CumminsLaw.net

Wednesday, November 23, 2022

Carrier Prevails In Another Business Interruption Coverage Case Arising Out of COVID-19 Closures


In the case of The Foundation for Indiana University of Pennsylvania v. Utica Nat’l Ins. Group, No. 2:22-CV-01126-AJS (W.D. Pa. Oct. 6, 2022 Schwab, J.), the court ruled that, given the language of a business insurance policy’s virus exclusion, and based upon the facts as pled by the Plaintiffs, the court ruled that business interruption coverage would be excluded for any of the Plaintiffs’ alleged economic losses and countered when the four (4) dormitories on the college campus were ordered to be vacated during the COVID-19 pandemic.

Moreover, the court found that the Plaintiff’s claims failed to trigger coverage under the policy at issue because the Plaintiffs’ dormitories did not sustain a direct physical loss of, or damage to, their actual structures.

Accordingly, the court ruled in favor of the insurance carrier on the Plaintiff’s claim for a declaration of a finding of coverage and on the related claims for breach of contract and bad faith.

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

I send thanks to Attorney Mark A. Martini of the Pittsburgh law firm of Robb Leonard Mulvihill, LLP for bringing this case to my attention.


Source of image:  Photo by Tim Mossholder on www.pexels.com.

Carrier Wins Another COVID-19 Business Interruption Coverage Case


In the case of In Re Erie COVID-19 Bus. Interruption Prot. Ins. Litig., No. 1:21-mc-1 (W.D. Pa. Oct. 14, 2022 Hornak, J.), the court granted the Defendant carrier’s Motion to Dismiss the Plaintiffs’ action for coverage for COVID-19 business losses under their commercial property insurance.

The court found that the Plaintiffs did not show the required direct “physical loss or damage to” their properties.

The court additionally found that the policy’s virus exclusion provisions also applied to prevent coverage.

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


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

HAPPY THANKSGIVING

 


HAPPY THANKSGIVING

HOPE YOU HAVE A WONDERFUL HOLIDAY.

THANK YOU FOR READING TORT TALK AND FOR SENDING IN YOUR NOTABLE COURT DECISIONS.

Dan Cummins

Tuesday, November 22, 2022

Federal Magistrate Judge Addresses Excessive Force Civil Rights Claims


In the case of Thompkins v. Klobucher, No. 2:21-CV-00320-CRE (W.D. Pa. Oct. 3, 2022 Reedy Eddy, M.J.), the court addressed a Motion for Summary Judgment filed by a Defendant police officer in a §1983 Civil Rights Action alleging excessive use of force.

According to the Opinion, the Plaintiff wife’s arm was broken was she was being arrested for domestic violence.

In reviewing the Defendant police officer’s Motion for Summary Judgment, the court found that there were genuine issues of material fact to be decided by a jury with regards to the alleged excessive force claim.

The court also found that the police officer was not entitled to qualified immunity at this stage of the proceedings.

As such, the police officer’s Motion for Summary Judgment was granted in part and denied in part.

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


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

Monday, November 21, 2022

Pennsylvania Superior Court Provides Appellate Guidance on Propriety of Allegations of Recklessness


In the case of Monroe v. CBH2O LP, d/b/a Camelback Ski Resort, No. 1862 EDA 2019 (Pa. Super. Nov. 21, 2022) (en banc) (per curiam), the Pennsylvania Superior Court, in a split decision, addressed the issue of the propriety of allegations of recklessness in a premises liability case regarding injuries that the Plaintiff sustained while utilizing a zip-line.

In the Majority Opinion of this case, the Pennsylvania Superior Court adopted what appeared to be the rule of law followed by the minority of Pennsylvania trial courts and held that allegations of recklessness are allegations of states of mind and, as mere forms of negligence, such allegations are not to be considered independent causes of action.   As such, according to the Majority in this Monroe decision, under Pa. R.C.P. 1019(b), given that allegations of recklessness are considered to be allegations of a state of mind, such allegations can be averred generally.  In this regard, the court cited, in part, the case of Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009).

I note that, in footnote 6 of the Opinion, the Majority cited to the review of the split of authority amongst the trial court judges across the Commonwealth on this issue as set forth in my article, “Pleading for Clarity: Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters,” 93 Pa. B.A.Q. 32 (Jan. 2022). 

Notably, in that same footnote, the Superior Court pointed to the case of Koloras v. Dollar Tree by Judge Terrence R. Nealon of Lackawanna County as an example of a trial court decision that had previously properly decided this issue, i.e., that allegations of recklessness were allegations of a state of mind that could be pled generally.

The Pennsylvania Superior Court also stated in footnote 6 that, with regards to the split of authority amongst the trial courts on the issue of the proper pleading of allegations, the decision in this Monroe case should serve to “remove[] any doubt that, so long as a plaintiff’s complaint (1) specifically alleges facts to state a prima facie claim for the tort of negligence, and (2) also alleges that the Defendant acted recklessly, the latter state-of-mind issue may only be resolved as a matter of law after discovery has closed.” See Op. at 24, n. 6.

In other words, under the Majority Opinion, a Plaintiff may plead recklessness in any case whatsoever with reckless abandon.  The court suggested that a defendant can revisit the issue by way of a summary judgment motion after the discovery in the case has been completed.

In two separate Dissenting Opinions in the case, one by President Judge Emeritus Bender and one by Judge Stabile, the alternative rule was advocated based upon 50 years of precedent, that being that a Plaintiff should have to plead sufficient facts in order to proceed on a claim for recklessness. However, that viewpoint, as found in the Dissenting Opinions, was not adopted by the Majority of the judges on this case.

It is noted that my above-referenced Pennsylvania Bar Quarterly article entitled “Pleading for Clarity” was also cited on page 2 of Judge Bender’s Dissenting Opinion as outlining the previous existing split of authority on the issue presented in trial courts across the Commonwealth.

That split of authority has been put to rest by this appellate guidance provided by the Pennsylvania Superior Court in the case of Monroe v. CBH2O LP, d/b/a Camelback Ski Resort.    

Anyone wishing to review a copy of the majority Opinion in this case may click this LINK

The dissenting Opinion by Judge Bender may be reviewed at this LINK.

The dissenting Opinion by Judge Stabile may be reviewed at this LINK.


[Public retraction:  I take back my commentary from my recent Lackawanna County Bench Bar Conference CLE presentation during which I asserted that the Judges of Lackawanna County were wrong in following the minority rule and the Archibald v. Kemble case.  It turns out that the Lackawanna County Judges were right and I was wrong --  the Superior Court has ruled that it is permissible to assert recklessness in any negligence case whatsoever regardless of the facts presented. 

In such cases, defendants will have to attempt to secure a stipulation for the removal of the recklessness allegations once discovery has been completed.  If such a stipulation is not forthcoming, defendants will have to file a motion for summary judgment asserting that the plaintiff has not produced facts during discovery to support that type of claim.]

Judge Nealon of Lackawanna County Rejects Request to Have Settled Defendants on Verdict Slip



In the case of Williams v. Glenmaura Senior Living at Montage, LLC, No. 21-CV-1494 (C.P. Lacka. Co. Nov. 7, 2022 Nealon, J.), the court addressed a motion by certain Defendants in a medical malpractice case for reconsideration of the court’s previous Order granting certain settling Defendants’ Motion for Discontinuance from the case by virtue of the settling Defendants’ Joint Tortfeasor Agreements.

One of the non-settling Defendants wished to keep the settling Defendants in the case for purposes of the trial.

Judge Terrence R. Nealon
Lackawanna County


In his Opinion, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas confirmed that, in Pennsylvania, there is no absolute right to have settling Co-Defendants placed on a verdict slip. Rather, under the applicable standard of review, the trial court is required to determine whether any evidence of a settling Co-Defendant’s liability exists before deciding whether to put that Co-Defendant on the verdict slip.

In terms of a medical malpractice action, Judge Nealon noted that expert testimony is required to establish the elements of a duty, breach, and causation and that, if expert testimony will not be presented at trial to establish a settling Defendant’s potential liability, then that settling Defendant should not be included on the verdict slip.

Judge Nealon noted that he had previously granted the voluntary Discontinuance of the settling Defendants in this matter in the absence of admissible expert testimony against those Defendants. The court also noted that any efforts by the Plaintiff to introduce expert testimony on the standard of care and causation would amount to hearsay in this case.

As such, the court found that it had previously properly granted the settling Defendants’ Motions for Discontinuance. The Motion for Reconsideration at issue here was, therefore, also denied.

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

Summary Judgment Issues Addressed in Pelvic Mesh Products Liability Case


In the case of Cohen v. Johnson & Johnson, No. 2:20-CV-00057(W.D. Pa. Pa. Oct. 5, 2022 Hornak, J.), the Western District federal court ruled that strict liability claims arising from an allegedly defective pelvic mesh could proceed where there was no evidence that the mesh was an unavoidably unsafe product or incapable of being made safe, which would preclude the imposition of strict liability.

The court denied in part and granted in part, the Defendants’ Motion for Summary Judgment.

Anyone wishing to review this decision may click this LINK.

Friday, November 18, 2022

Motion To Dismiss Granted in Legal Malpractice Claim



In the Nupson v. Schnader Harrison Segal & Lewis, LLP, No. 18-2505 (E.D. Pa. Sept. 30, 2022 Alejandro, J.), the court addressed the statute of limitations in a legal malpractice claim.

In this matter, the court found that the Plaintiff was on notice of her legal malpractice claims by the time her new attorney indicated that the Plaintiff had been allegedly harmed by the Defendants’ prior conduct and where Plaintiff had filed litigation asserting claims arising from that alleged conduct. In light of these facts in the record, the court found that the Plaintiff’s later legal malpractice claim was untimely.

As such, the Defendant law firm’s Motion to Dismiss was granted.

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


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

Source of image:  Photo by Melinda Gimpel on www.unsplash.com.
 

Thursday, November 17, 2022

Court Reviews Standard of Review For Motion to Amend Complaint in Federal Court


In the case of Moravia Motorcycle, Inc. v. Allstate Ins. Co., No.2:21-cv-01274-PLD (W.D. Pa. Oct. 19, 2022 Dodge, Mag. J.), the court addressed a Plaintiff’s Motion for Leave to Amend Complaint and join an additional party which was opposed by the Defendant carrier in this breach of contract and bad faith claim. The court denied the Motion.

According to the Opinion, this case involved a claim by the Plaintiffs against the Defendant carrier in which they sought benefits under an insurance policy for damage to their motorhome.

The court noted that the Plaintiff was relying upon F.R.C.P. 15(a)(2) in seeking to amend their Complaint. Under that Rule, it is provided that, when a party moves to amend a pleading, “the court should freely give leave when justice so requires.”

However, the magistrate judge in this case noted that the Third Circuit Court of Appeals has held that a party seeking to amend after the deadline in a Case Management Order is required to meet the good cause standard of F.R.C.P. 16(b)(4), and not the more liberal standard of Rule 15(a)(2).

In reviewing the record before it, the court noted that there was evidence that the Plaintiff was aware of the possible need to join in another party before the deadline to amend actually expired. In the end, the court found that the Plaintiff had not met the good cause standard.

The court also went on to state that, even if the Plaintiff had met the good cause standard, because their motion sought to add a non-diverse party, the Plaintiffs would have been required to meet other factors in order to be allowed to amend to join a non-diverse party.

The court noted that some of the factors which may be considered by a court when faced with a Motion to Add a Non-Diverse Party would include the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether the Plaintiff had been dilatory in requesting the amendment, whether the Plaintiff would be significantly injured if the amendment is not allowed, and other equitable factors. The court in this matter noted that it did not appear that these particular factors had yet been adopted in the Third Circuit but had been utilized in other federal circuits.

Nevertheless, after reviewing the factors as applied in this case, the court ruled that the factors weighed against allowing the joinder of the non-diverse Defendant in any event.

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

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

Wednesday, November 16, 2022

Motion to Dismiss Granted in Declaratory Judgment Action Over Coverage for Covid-19 Shutdowns




In the case of Reconstructive Orthopeadic Assoc. v. Zurich Am. Ins. Co., No. 21-4003 (E.D. Pa. Sept. 29, 2022 Savage, J.), the court granted a Defendant carrier’s Motion to Dismiss a Plaintiff’s claims for insurance coverage for business losses due to COVID-19 shutdown Orders.

The court found that the Plaintiff’s claims in this regard fail because the Plaintiff did not allege any direct physical loss of or damages to its properties.

The court additionally found that the Plaintiff failed to state a claim under the communicable disease provision since it did not show an inability of access to the facilities due to a government Order issued in response to the discovery or threat of COVID-19 at the Plaintiff’s property.

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


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

Tuesday, November 15, 2022

Have You Registered For the Lessons From the Godfather CLE? (Attend via Zoom or In Person)

  


LESSONS FROM THE GODFATHER

An entertaining one hour ethics CLE that takes famous quotes from the movies that make up The Godfather Trilogy and applies them to the practice of law.

by

Daniel E. Cummins, Esq.

CUMMINS LAW

FRIDAY, DECEMBER 2, 2022

Noon to 1 p.m.

(1 Ethics CLE)


Live in the Presidents' Room in the Law Library in the Luzerne County Court House

and also 

via ZOOM


Technology Assistance to be provided by


CLE is Free for W-BLLA Members

$35.00 for Non-Members


TO REGISTER GO TO www.Luzernecountybar.com

(When registering, please be sure to provide your name and Attorney ID Number)

All payments must be received 48 hours in advance of the program


To pay by check:  Please mail check payable to the 

"Wilkes-Barre Law and Library Association."

Mail to the Law Library at: 

W-BLLA

Room 23

200 North River Street

Wilkes-Barre, PA 18711


If you have any questions, please call Gail Kopiak at

(570) 822-6712 or email Gail at 

Gail.Kopiak@luzernecounty.org

Monday, November 14, 2022

Federal Court Addresses Right to Identify Insurance Carrier Defendant By Name at Post-Koken Trial; Also Compels Both Parties to Present Medical Experts as Live Witnesses


In the case of Whitlock v. Allstate Fire & Cas. Ins. Co., No. 2:20-CV-00373-KSM (E.D. Pa. Oct. 13, 2022 Marston, J.), the court addressed various Motions In Limine.
At a pre-trial conference, Allstate requested to be referred to at the trial in the name of the non-party tortfeasor as oppose to as "Allstate."  This the court refused.    

Of note, the court ruled that Federal Rule of Civil Procedure 411, regarding the admissibility of insurance evidence, applies only where negligence or other wrongful conduct is at issue. The court noted that this rule did not apply in a contract action involving an insurance company.

The court also found that evidence that the Defendant is an insurance company being sued under a policy of insurance was not unduly prejudicial under F.R.C.P. 403. The court noted that Pennsylvania law does not exclude insurance evidence under these circumstances.

As such, the court found that Allstate had not established a reason to use another name for the carrier at trial or that the carrier would be prejudiced by the use of its name at trial in front of the jury.    

In an other notable ruling in this decision, the court stated that, before a witness’ recorded deposition testimony is admissible in lieu of live testimony, there must be an exceptionable showing of reasons for the witness’ unavailability.

The court stated that the fact that medical witnesses are busy seeing other patients is not an exceptionable circumstance. The Court stated that it is well known that doctors are almost always busy. The court stated that, to recognize a “busy witness” exception would expand the exception to swallow the rule favoring live testimony.

As such, the court compelled both parties to present their medical expert's testimonies live at trial instead of by way of video deposition.    

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.

No New Stacking Waiver Required Where Insured Substituted a Replacement Vehicle


In the case of Shanfelt v. Progressive Adv. Ins. Co., No. 21-CV-1614 (C.P. Carbon Co. June 22, 2022 Matika J.), the court found that a Plaintiff could not recover stacked underinsured motorist coverage benefits where her father, who was the original insured, had executed a valid stacking waiver when he first purchased the insurance policy and the subsequent substitution of a replacement vehicle did not require the carrier to secure a new waiver for that policy.

Based upon this ruling, the court dismissed the Plaintiff’s declaratory judgment Complaint.

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


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



Friday, November 11, 2022

Summary Judgment Motion by Out-of-Possession Landlord Defendants Denied in Dog Bite Case


In the case of Eggleston v. Richards, No. 10753 of 2019, C.A. (C.P. Lawr. Co. Sept. 29, 2022 Motto, P.J.), the court granted in part and denied in part a Motion for Summary Judgment in a dog bite case. As part of its decision, the court struck the Plaintiff’s claim for punitive damages.

According to the Opinion, the Defendants were out-of-possession landlords who asserted that they could not be held liable for the injuries sustained by the minor Plaintiff because the Defendants did not have actual knowledge of the dog’s alleged dangerous propensities. They also moved for summary judgment on the Plaintiff’s claims for punitive damages as there was, according to the defense, no evidence of any evil motive or outrageous conduct.

The dog involved was a pit bull named “Smoke” who was owned by a tenant of the Defendants. According to the Opinion, the landlord Defendants were aware that the dog was on the premises.

With regard to the subject incident, the minor Plaintiff was walking in an alley near the property when the pit bull chased the minor in to the woods while biting the minor’s arm and leg, requiring stitches and other medical care for the Plaintiff thereafter.

The court reviewed the law of Pennsylvania regarding the liability of landlords out-of-possession in dog bite cases.

The court found that there were issues of material fact that existed as to whether the landlord out-of-possession had knowledge of the dog’s alleged aggressiveness or propensity to viciousness.  As such, the summary judgment motion was denied in this regard.

According to the record before the court, the landlord visited the premises on numerous occasions and was able to view the dog’s behavior. 

It was noted that, during one incident, when the landlord approached the residence, the dog ran towards the door and was barking, which caused the landlord to step backwards. It was also noted that the tenant would keep the dog away from the landlord for the landlord’s safety whenever the landlord visited the premises. 

There was also evidence that there was a prior incident involving the same dog. Whether or not the landlord Defendant was aware of that prior incident, the court noted that it was otherwise admitted that the landlord and the tenant had numerous conversations in general about the dog.

With regards to the court’s granting of summary judgment relative to the punitive damages claim given the absence of any evidence of evil motive or outrageous conduct, the court noted that the Plaintiff had acknowledged that there was insufficient evidence to allow for an award of punitive damages. As such, the Plaintiff had stipulated that the claim for punitive damages should be stricken.

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


I send thanks to Attorney Dale Larrimore of the Philadelphia law firm of Larrymore and Farnish, LLP, for bringing this case to my attention.

Thursday, November 10, 2022

CUMMINS MEDIATION Tip for Successful Mediations

 

If the settlement negotiations reach an impasse at Mediation, consider Plan B -- utilizing the Mediator to effectuate an agreement of the parties to bring the case to a close sooner rathat than later, and less expensively, by way of a binding high/low arbitration with agreed upon parameters.



Please consider scheduling your Mediation today:

570-319-5899

DanCummins@CumminsLaw.net


Bring Your Case to a Close With Cummins Mediation

The Dangers of Store Checkout Lines


In the case of Kovalev v. Wal-Mart, Inc., No. 2:2022-CV-1217 (E.D. Pa. Oct. 11, 2022 Quinones Alejandro, J.), the court granted a F.R.C.P. 12(b)(6)Motion to Dismiss in part and denied it in part in a premises liability case.

According to the Opinion, the Plaintiff was allegedly injured when he was standing in a checkout line and a customer behind him started hitting the Plaintiff with her shopping cart while shouting "move the line."  The Plaintiff alleged, in part, that, even though security personnel had the ability to observe the incident via real-time surveillance in a security room several feet away, no one came to the aid of the Plaintiff at the time of the incident.    

After suit was initiated, the Defendant store filed a Rule 12(b)(6) Motion to Dismiss on various grounds.

The Plaintiff's claims against Wal-Mart for assault and battery were dismissed given the lack of any facts to support any allegations that the store intentionally harmed the Plaintiff.  Nor were there any facts to support an allegation that Wal-Mart was liable for the intentional acts of another patron in the store.

The court found that the Plaintiff’s claim that the store was negligent in failing to have sufficient security to prevent its customers from assaulting other customers did state a valid cause of action.  Here, the Plaintiff alleged that he was a business invitee of the store and that the store was negligent in protecting him from the intentional or criminal acts of a third person within the store.

However, the court also found that a negligence duty to provide security within a commercial establishment does not create a special relationship that would support a separate claim for negligent infliction of emotional distress. The court noted that such relationships exist only in extremely limited circumstances.

The court dismissed the Plaintiff's separate claim for "gross negligence" after finding that there is no separate cause of action for gross negligence recognized under Pennsylvania law.  

The court additionally found that negligence per se is not an independent cause of action.

In contrast, the court in this matter additionally ruled that there is civil cause of action recognized in Pennsylvania for recklessness endangerment. 

The court also ruled that, absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act. The court also found that a negligence claim is not an intentional or criminal act that could support a separte civil conspiracy claim.

Lastly, the court also found that physical and emotional injuries do not support a cause of action under the Unfair Trade Practices & Consumer Protection Law, as that cause of action is limited to losses of money or property.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's compantion 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.

Chief Judge Matthew W. Brann Addresses How To Attack Deficient Affirmative Defenses


In the case of Armbruster v. Eskola, No. 4:21-CV-02070 (M.D. Pa. Oct. 5, 2022 Brann, J.), the court granted in part and denied in part a Motion to Dismiss. Of note, the court addressed the propriety of pleadings in a Defendant's stated affirmative defenses in this Federal Court matter.

This case arose out of a motor vehicle accident.

After the Defendant file an Answer with Affirmative Defenses, the Plaintiff filed a Motion to Strike the Answer under F.R.C.P. 11.    

Initially, the court ruled that a Rule 12(f) Motion to Strike, not a challenge under Rule 11, is the proper process for evaluating the sufficiency of pleading defenses.

Under F.R.C.P. 12(f), a court "may strike from a pleading an insufficient defense or any redundant material, immaterial, impertinent, or scandalous matter."   

Chief Judge Matthew W. Brann
M.D. Pa.

Judge Matthew W. Brann went on to rule that affirmative defenses asserted by a Defendant must provide the Plaintiff with fair notice as to the types of defenses raised, but need not rise to the level of plausibility.

The court noted that pleading facts in affirmative defenses is not necessary as long as the defense stated is logically within the ambit of the litigation. However, defenses that have no factual or logical relationship to the allegations in the Complaint will be stricken.

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.

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

Friday, November 4, 2022

CUMMINS MEDIATION Tip for Successful Mediation

 

Remember, the goal at a mediation is not to "win."  The goal is to settle.  Each party wins by settling.



Please consider scheduling your Mediation today:

570-319-5899

DanCummins@CumminsLaw.net


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Quoted in Article Entitled "What Will the Legal Landscape Look Like for Self-Driving Vehicles?"

 

Here is a LINK to the November 7, 2022 edition of the Pennsylvania Bar News and the article by Andy M. Andrews entitled "What Will the Legal Landscape Look Like for Self-Driving Vehicles?"  Mr. Andrews contacted me for some thoughts and quotes on the topic.  

For other Tort Talk Blog posts on the topic of "Self-Driving Vehicles" please click this LINK.




Thursday, November 3, 2022

OPEN THE VAULT: Court Allows Discovery of Bank Records of Defendant in Punitive Damages Case


In the case of Williams v. Glenmaura Senior Living at Montage, LLC, No. 21-CV-1494 (C.P. Lacka. Co. Oct. 14, 2022 Nealon, J.), the court addressed discovery motions relative to the scope of permissible discovery of financial assets of a Defendant relative to a punitive damages claim in a personal injury case.

According to the Opinion, this case involved a professional liability action alleging reckless and negligence relative to alleged acts and/or omissions by the Defendants at a senior living facility which allegedly caused the death of the Plaintiff’s decedent.

After the Defendant’s separate Motion for Summary Judgment on the punitive damages claims was denied, the Plaintiff sought additional discovery on the Defendant’s financial assets over and above the tax returns that the Defendant had previously produced. In part, the Plaintiff was seeking to gather bank records in an effort to discover more detailed information on the financial worth of the Defendant.

Judge Nealon overruled the defense objections to the discovery requests and found that the Plaintiff was entitled to discover the most accurate and detailed financial documentation and information that reflects the exact amount by which the Defendant’s assets exceeded its liabilities. 

The court noted that the tax records and balance sheets previously produced by the Defendant may not fully demonstrate the Defendant’s net worth with sufficient precision and completeness.

The court therefore allowed the Plaintiff to gather the relevant bank records since a borrower seeking financing from a bank is likely to portray its financial position in a positive light in an effort to secure the requested funding. The court found that the Defendant’s representations of its assets to the bank would likely assist in this regard.

As such, the court ruled that the Defendant had not satisfied its burden of demonstrating that the requested materials were not discoverable under the liberal discovery allowed in Pennsylvania Rules of Civil Procedure. 

Accordingly, the court granted the Plaintiff’s Motion to Strike the Defendant’s Objections to the subpoenas that were addressed to the Defendant’s bank. However, the court limited the subpoenas to only require the production of records within the past three (3) years. The court additionally required the execution of a confidentiality agreement between the parties restricting the dissemination of the materials obtained.

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

Source of image:  Photo by Brock Wegner from www.unsplash.com.
 


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Wednesday, November 2, 2022

Lackawanna County Continues With the Minority Rule of Allowing the Pleading of Recklessness in Every Case Regardless of Facts



In the case of Mangieri v. Chen, No. 22-CV-3149 (C.P. Lacka. Co. Oct. 18, 2022, Gibbons, J.), the court denied Preliminary Objections filed by a tortfeasor Defendant challenging the Plaintiff’s allegations of recklessness and for punitive damages in a rear-end accident matter.

The court noted that, in this rear-end accident matter, the Plaintiff alleged that the tortfeasor Defendant operated his vehicle in an outrageous, careless, and reckless manner. The Plaintiff also sought punitive damages.

The tortfeasor filed Preliminary Objections asserting that the Plaintiff’s allegations of reckless, willful and wanton conduct were baseless legal conclusions lacking any factual support.

Judge Gibbons followed the trend in Lackawanna County by ruling that recklessness is a state of mind which can be averred generally under Pa. R.C.P. 1019(b) such that the Plaintiff’s claims for punitive damages were allowed to proceed. In so ruling, the court again referred to the case of Archibald v. Kemble, 971 A.2d 513, 519 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010).

In concluding his Opinion, Judge Gibbons confirmed that the tortfeasor Defendant would have the opportunity to revisit this argument at a later time of the case at the summary judgment stage. However, in the context of the Preliminary Objections, the same were overruled and the Plaintiff’s Complaint was allowed to proceed.

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

Tuesday, November 1, 2022

Pennsylvania Superior Court Addresses Authentication of Social Media Evidence (in a Criminal Case)


In an example of criminal court case providing law that could become pertinent in a civil litigation matter, in the case of Commonwealth v. Jackson, 2022 Pa. Super 156 (Pa. Super. Sept. 13, 2022 Bowes, J., Lazarus, and Stabile, J.)(Op. by Lazarus, J.), the court found that the prosecution had sufficiently authenticated social media accounts by providing substantial circumstantial evidence linking the accounts to the Defendant in a first degree murder case.

On appeal, the Defendant challenged the admission of the social media evidence under the authentication rules found at Pa.R.E. 901.

According to the Opinion, the prosecution introduced names of accounts that reflected nicknames used by the Defendant. Also provided were biographical sections of the accounts, which were all similar to each other and contained a pin drop location reflecting the place where the Defendant was photographed at times.

The supporting evidence also showed that the information in the accounts was consistent with information in another account that the Defendant admitted that he owned and controlled.   

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


Source:  “Court Summaries.”  By: Timothy L. Clawges. Pennsylvania Bar News (Oct. 10, 2022).


Source of image: Photo by Sara Kurfeb on www.unsplash.com.



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dancummins@CumminsLaw.net