THE TORT TALK 2022 TOP TEN

Here is the 2022 Tort Talk Top Ten -- an annual listing of some of the notable cases and top trends in Pennsylvania civil litigation law from over the past year or so as highlighted in Tort Talk blog posts:

10.  BUSINESS INTERRUPTION COVERAGE CASES TREND

The state and federal courts of Pennsylvania grappled with the issue of whether the business interruption coverage provisions under business insurance policies were triggered by the governmental shutdown orders issued during the COVID-19 pandemic.  While the carriers have generally prevailed in the cases presented, plaintiffs recently scored a victory in the Pennsylvania Superior Court.  

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Business Interruption Coverage" to get to the Tort Talk posts on that topic.

9.  DELAY DAMAGES NOT IMPACTED BY COVID-19 PANDEMIC

In 2022, the court's rejected efforts by defense counsel to limit their client's exposure to delay damages by arguing that the time associated with delays caused by the closure of the courts during the COVID-19 pandemic should be subtracted from the delay damages calculation.  See Getting v. Mark Sales & Leasing, Inc., 274 A.3d 1251 (Pa. Super. 2022)

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Delay Damages" to get to the Tort Talk posts on that topic.

8.  RULE CHANGES OF NOTE

On April 1, an amendment to Pa.R.C.P. 223.2 regarding Juror Note Taking went into effect, allowing for more instances of note taking during a civil litigation trial.

On July 1, an amendment to Pa.R.C.P. 1311.1 went into effect allowing for the jurisdictional limit for appeals from arbitration to be the jurisdictional limit of the judicial district in which the suit was filed, which is typically $50,000.

And on January 1, 2023, under another Rule change allowed by the Pennsylvania Supreme Court will go into effect in the context of medical malparctice cases, amendments to venue rules found at Pa.R.C.P. 1006, 2130, 2156 and 2179.  These amendments will allow plaintiffs to file a medical malpractice suit in any county where the medical provider regularly conducts its business or has significant contacts.

To gather more details on any of the above Rule changes, please go to www.TortTalk.com and type in any of the Rule numbers into the "Search This Blog" Box in the upper right hand corner and click on "Search."

7.  SPEAKING OBJECTIONS AT DEPOSITIONS PROHIBITED

Attorneys on both sides of the bar seemed to be pushing back more on speaking objections at depositions in recent years.  So much so that the issue came before the Court and resulted in an Opinion in which the rules of that game were clarified in the case of The Fiduciary Trust Co. Int'l. of Pa v. Geisinger-Community Medical Center, No. 20-CV-4775 (C.P. Lacka. Co. March 4, 2022 Nealon, J.).

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Objections at Depositions" to get to the Tort Talk posts on that topic.

6.  VIDEO OF ACCIDENT/INCIDENT MUST BE PRODUCED PRIOR TO DEPOSITION

In what appears to be a decision of first impression, the Allegheny County Court of Common Pleas issued a decision in the case of Capenos v. Greentree Hardware & Electric, Inc., No. GD-20-010087 (C.P. Alleg. Co. Dec. 17, 2021), in which the court ruled that surveillance footage of an automobile accident was required to be produced prior to a plaintiff's deposition.

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Video of Accident" to get to the Tort Talk posts on that topic.

5.  PENNSYLVANIA SUPREME COURT HELPS PLAINTIFF MEDICAL MALPRACTICE ACTIONS

In addition to formulating and putting into effect venue Rule changes that dramatically expands where a medical malpractice plaintiff may file suit, i.e., to where ever the medical provider conducts its business or has significant contacts, in the case of Reibenstein v. Barrax, No. 32 MAP 2021 (Pa. Dec. 12, 2022), the Pennsylvania Supreme Court addressed the extent to which the tolling provision in the MCARE act may apply in given cases.

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Medical Malpractice" to get to the Tort Talk posts on that topic.

4.  REGULAR USE EXCLUSION UNDER FIRE

The All-American Rule that you can't get something for nothing continues to be under fire in Pennsylvania civil litigation matters.

More specifically, the notion that you can't get insurance coverage you did not pay for is under fire.

In the wake of the the court decisions on the validity of the Household Exclusion in recent years, the Regular Use Exclusion also had a target on its back this year.

Both the Household Exclusion and the Regular Use Exclusion protect carriers from having to pay out UM or UIM insurance benefits in cases involving vehicles for which no coverage was provided for, or paid for, under the policy at issue.

In the last year or so, the Pennsylvania Superior Court ruled that the Regular Use Exclusion was invalid in two separate cases, namely, Rush v. Erie Ins. Exchange, 265 A.3d 794 (Pa. Super. 2021), and Jones v. Erie Ins. Exchange, No. 690 WDA 2022 (Pa. Super. Sept. 7, 2022).

Note that the Rush case is currently before the plaintiff-friendly Pennsylvania Supreme Court for a decision.

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Regular Use Exclusion" to get to the Tort Talk posts on that topic.

3.  FAIR SHARE ACT REMAINS SOMEWHAT UNSETTLED

In 2022, there were several decisions in which the question of whether the Fair Share Act should apply in cases involving an innocent plaintiff was again addressed.  These cases arise out the dicta handed down in the Spencer v. Johnson decision in which the Pennsylvania Superior Court expounded on the issue even though that particular issue wasn't before them in that matter.

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Fair Share Act" to get to the Tort Talk posts on that topic.

2.  APPELLATE GUIDANCE ON ALLEGATIONS OF RECKLESSNESS

In the case of Monroe v. Camelback Ski Resort, No. 1862 EDA 2019 (Pa. Super. Nov. 2022)(en banc)(per curiam), the Pennsylvania Superior Court provided appellate guidance on the issues of the proper allegation of recklessness in state court personal injury Complaints.  

That court adopted the plaintiff-friendly notion that a plaintiff may plead recklessness in any Complaint whatsoever with reckless abandon and regardless of the facts presented.  

The remedy for the defendant is to attack the allegations of recklessness by way of a motion for summary judgment and to hope for the best, that is, hope that a trial court judge does not deny the motion for summary judgment under the onerous standard of review just for the sake of keeping the pressure on for a potential settlement.

For more information, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Allegations of Recklessness" or "Recklessness" to get to the Tort Talk posts on that topic.

1.  A MORE EFFICIENT PRACTICE OF LAW THROUGH ADVANCED COMMUNICATIONS TECHNOLOGY IS HERE TO STAY

The rise of the more common use of Advanced Communications Technology (ACT) such as Zoom allowed the wheels of justice to keep turning during the pandemic and, thankfully, is here to stay for a more efficient, less expensive practice of law going forward.

Here's a LINK to my article on tips on how to improve your appearance on Zoom and/or what to tell your clients to help improve their appearance at their depositions.  One notable tip in this regard is to tell your clients to look into the camera when they are answering so as to appear to be looking into the questioner's eyes as they provide information.

For more information on this topic, please go to www.TortTalk.com and scroll down the right hand column to the "Labels" section and then, in alphabetical order below that, click on the label for "Zoom" to get to the Tort Talk posts on that topic.

Thank you for reading Tort Talk and thank you for providing me with cases of note to highlight here on Tort Talk.

Hoping you can please keep me in mind should I be able to assist you in bringing 

your cases to a close via a Mediation.

(570) 319-5899

dancummins@CumminsLaw.net

Source of top image:  Photo by Magda Ehlers on www.pexels.com.