Friday, April 28, 2023
Thursday, April 27, 2023
Zero Verdict For Pain and Suffering Damages Upheld
The Court noted that, the Plaintiff was not able to advise the jury was to what caused her to fall on a sidewalk.
Also, the medical evidence appeared to confirm that the Plaintiff may have sustained an ankle sprain for which she had minimal and conservative treatment. The trial court judge also noted in his Opinion that, although the Plaintiff testified to the jury that she had walked with a limp at times, the jury was able to watch the Plaintiff walk to and from the witness stand.
In requesting the Pennsylvania Superior Court to affirm its decision denying the Plaintiff’s Motion for a New Trial, the trial court found that the evidence was sufficient for the jury to decline to award the Plaintiff non-economic damages where the Plaintiff’s subjective complaints were inconsistent with the objective medical evidence presented.
The court also found that the Plaintiff’s treatment was excessive in relationship to the alleged severity of the injury. The Plaintiff was also noted to have been non-compliant with her doctor's treatment recommendations.
The trial court also faulted the Plaintiff with respect to the number of issues raised on appeal in the Plaintiff’s Concise Statement of Matters Complained of on Appeal. Given that the Plaintiff's Concise Statement was not concise, the trial court requested that the Superior Court find that the Plaintiff's alleged errors be deemed waived under Pa.R.A.P. 1925(b)(4)(vii).
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 14, 2023).
In requesting the Pennsylvania Superior Court to affirm its decision denying the Plaintiff’s Motion for a New Trial, the trial court found that the evidence was sufficient for the jury to decline to award the Plaintiff non-economic damages where the Plaintiff’s subjective complaints were inconsistent with the objective medical evidence presented.
The court also found that the Plaintiff’s treatment was excessive in relationship to the alleged severity of the injury. The Plaintiff was also noted to have been non-compliant with her doctor's treatment recommendations.
The trial court also faulted the Plaintiff with respect to the number of issues raised on appeal in the Plaintiff’s Concise Statement of Matters Complained of on Appeal. Given that the Plaintiff's Concise Statement was not concise, the trial court requested that the Superior Court find that the Plaintiff's alleged errors be deemed waived under Pa.R.A.P. 1925(b)(4)(vii).
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 14, 2023).
For review Tort Talk posts on Zero Verdict cases, as well as an article entitled "Litigating the Zero Verdict" by Daniel E. Cummins and Stephen T. Kopko, please click this LINK.
Wednesday, April 26, 2023
CUMMINS LAW IS HIRING
Associate Attorney - Insurance Defense Firm
Clarks Summit, PA
Cummins Law, an Insurance Defense Firm located in Clarks Summit, PA, seeks a full-time associate attorney. Attorney will be tasked with handling all aspects of the defense of civil litigation matters, with a focus on auto accident and premises liability matters. Excellent writing, communication, research and analytical skills required.
Cummins Law offers a friendly, fast-paced office environment along with an excellent benefits package, including a 401(k) plan, and medical, dental, and vision coverage.
Interested candidates should submit a cover letter, resume and writing sample along with salary requirements to info@CumminsLaw.net.
Punitive Damages Claims Dismissed in Federal Trucking Accident Case
Chief Judge Matthew W. Brann of the Middle District Court of Pennsylvania ruled that punitive damages are proper only when the Defendant’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct. In order to proceed on a claim for punitive damages, the Plaintiff must pled facts in support of the same.
In support of a punitive damages claim, the Plaintiff rattled off a long list of traffic violations against the Defendant in the Complaint, including allegations that the Defendant-driver was driving while distracted or fatigued and that the driver allegedly fell asleep while driving.
The Court noted that, while the Plaintiff had alleged a slew of traffic violations alleged committed by the Defendant-driver, the Plaintiff had only factually alleged that the Defendant-driver operated a tractor trailer and, at the time of the accident, allegedly ran a red light.
Judge Brann noted that a Plaintiff who only alleges that a Defendant failed to obey traffic laws has not met the pleadings requirements for punitive damages claims, particularly where underlying facts are not also pled in support of such allegations of outrageous conduct.
It was also emphasized that, in this case, the Plaintiff did not allege any facts to support an allegation that the driver made a conscious decision to drive while fatigued.
Judge Brann noted that a Plaintiff who only alleges that a Defendant failed to obey traffic laws has not met the pleadings requirements for punitive damages claims, particularly where underlying facts are not also pled in support of such allegations of outrageous conduct.
It was also emphasized that, in this case, the Plaintiff did not allege any facts to support an allegation that the driver made a conscious decision to drive while fatigued.
Chief Judge Brann ruled that, at most, the Plaintiff alleged that the Defendant-driver failed to follow the Rules of the Road. The Court found that such allegations, alone, are insufficient to support a claim for punitive damages. As such, the punitive damages claims asserted against the Defendant-driver were dismissed.
Chief Judge Brann otherwise ruled that, with respect to the allegations of punitive damages asserted against the Defendant trucking company, those claims would also be dismissed given that the Plaintiff had only pled conclusory allegations that the company Defendant knew or should have known certain things without the Plaintiff also providing any factual specificity in the Complaint. Accordingly, the punitive damages claims asserted against the Defendant-company were also dismissed.
Anyone wishing to review a copy of this decision may click this LINK. The Court's companion Order can be viewed at this LINK.
I send thanks to Attorney James M. Beck of the Philadelphia law firm of the Reed Smith law firm for bringing this case to my attention.
Anyone wishing to review a copy of this decision may click this LINK. The Court's companion Order can be viewed at this LINK.
I send thanks to Attorney James M. Beck of the Philadelphia law firm of the Reed Smith law firm for bringing this case to my attention.
Source of image: Photo by Pixabay on www.pexels.com.
Tuesday, April 25, 2023
Amendment To Add New Claim To Med Mal Case Not Allowed After Statute of Limitations Had Expired
In this case, the Pennsylvania Superior Court found that, where the Plaintiff’s Complaint made allegations solely about prostate cancer, it was an error by the trial court to allow an amendment of the Complaint so as to permit evidence to be presented at trial on a claim for liver cancer, where that claim was only asserted after the two (2) year statute of limitations had run.
The court reaffirmed the general rule that amendments to a Complaint to add new causes of action after the statute of limitations is not permitted.
The court additionally noted that, where an expert report includes a new cause of action on behalf of a Plaintiff, the trial court may not permit the Plaintiff to introduce that opinion after the applicable statute of limitations has run.
The court found that there was no possible reading of the Complaint that could support a claim that the allegations of liver cancer were contained therein so as to allow the desired amendment or claims to proceed.
In this matter, because the trial court utilized a special verdict questionnaire that allowed the jury to reach separate verdicts for the two (2) types of cancer, only the jury verdict relative to the claim of medical malpractice related to the liver cancer would be reversed.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm.
REMINDER: Tomorrow (April 26th) is Administrative Professionals Day
Tomorrow, April 26th, is Administrative Professionals Day.
Don't forget to show gratitude to those who help to make your life smoother day in and day out.
Source of image: Photo by George Dolgikh on www.pexels.com.
Monday, April 24, 2023
Pennsylvania Supreme Court Rules No New UIM Waiver Forms Required When a Change Is Made to an Existing Auto Insurance Policy
In the case of Franks v. State Farm Mut. Auto. Ins. Co., No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.), the court ruled that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived through a waiver form executed by the insured, did not require the insurance carrier to secure a renewed expressed waiver of stacked coverage under §1738(c).
At the lower level, the Pennsylvania Superior Court had described the issue in this case as one of first impression.
By way of background, according to the Pennsylvania Supreme Court's Opinion, the injured parties purchased automobile insurance from State Farm in 2013 for their two (2) vehicles.
The Plaintiffs included underinsured motorist coverage in their policy but completed a form rejecting stacked UIM coverage in compliance with §1738(d)(2) of the Motor Vehicle Financial Responsibility Law (“MVFRL”).
By way of background, according to the Pennsylvania Supreme Court's Opinion, the injured parties purchased automobile insurance from State Farm in 2013 for their two (2) vehicles.
The Plaintiffs included underinsured motorist coverage in their policy but completed a form rejecting stacked UIM coverage in compliance with §1738(d)(2) of the Motor Vehicle Financial Responsibility Law (“MVFRL”).
The court noted that, absent any such waiver, stacked coverage would have been the default.
Thereafter, under the history of the insurance policy in question, the Plaintiffs removed one of the original vehicles and added a third vehicle to the policy in 2014. The Plaintiffs again rejected stacked UIM coverage at that point.
The Plaintiffs made another change to the automobile insurance policy in 2015 under which they removed the other of the original insured vehicles and replaced it with a different vehicle. No additional form rejecting stacked UIM coverage was offered or sought to be completed on the occasion of the removal of the last vehicle.
The court emphasized that the ongoing premiums paid by the Plaintiffs reflected the lower rate for non-stacked UIM coverage on the vehicles under the policy.
Thereafter, one of the Plaintiffs was injured in the motor vehicle accident. After pursuing a claim against the tortfeasor, the Plaintiffs pursued a UIM claim against State Farm. The parties disagreed on what the available limits would be.
The Plaintiffs argued that, with the last change to the policy, there was no valid waiver of stacked UIM coverage secured by the carrier and that, as such, the Plaintiffs were entitled to default stacked coverage under Pennsylvania law.
The Superior Court had ruled in favor of the insurance company.
On this appeal, the Supreme Court ruled that the Superior Court did not err when this Superior Court held that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived, did not require a renewed express waiver of stacked coverage pursuant to §1738(c).
Thereafter, under the history of the insurance policy in question, the Plaintiffs removed one of the original vehicles and added a third vehicle to the policy in 2014. The Plaintiffs again rejected stacked UIM coverage at that point.
The Plaintiffs made another change to the automobile insurance policy in 2015 under which they removed the other of the original insured vehicles and replaced it with a different vehicle. No additional form rejecting stacked UIM coverage was offered or sought to be completed on the occasion of the removal of the last vehicle.
The court emphasized that the ongoing premiums paid by the Plaintiffs reflected the lower rate for non-stacked UIM coverage on the vehicles under the policy.
Thereafter, one of the Plaintiffs was injured in the motor vehicle accident. After pursuing a claim against the tortfeasor, the Plaintiffs pursued a UIM claim against State Farm. The parties disagreed on what the available limits would be.
The Plaintiffs argued that, with the last change to the policy, there was no valid waiver of stacked UIM coverage secured by the carrier and that, as such, the Plaintiffs were entitled to default stacked coverage under Pennsylvania law.
The Superior Court had ruled in favor of the insurance company.
On this appeal, the Supreme Court ruled that the Superior Court did not err when this Superior Court held that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived, did not require a renewed express waiver of stacked coverage pursuant to §1738(c).
The basic rationale of the Court was that Section 1738 requires insurance companies to secure a new written waiver of UIM coverage whenever an insurance policy is purchased. Here, there was a change made to an existing policy. No new policy was purchased. As such, there was no requirement under the law for the carrier to secure a new waiver form.
Anyone wishing to review a copy of this decision may click this LINK.
Anyone wishing to review a copy of this decision may click this LINK.
Friday, April 21, 2023
Hills and Ridges Doctrine Argument Rejected in Black Ice Case
The Defendants attempted to argue the hills and ridges doctrine.
The Plaintiff presented expert testimony that the slippery condition was caused by a re-freezing of water which created a black ice condition in a pedestrian pathway.
The court found that issues of fact prevented the entry of summary judgment.
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 24, 2023).
Source of image: Photo by Egor Kamelev on www.pexels.com.
Wednesday, April 19, 2023
Court Precludes Admissibility of Exemplar Pictures of a Surgery That Plaintiff Did Not Even Have
In the case of Crump v. Goldsleger, Aug. Term, No. 01434 (C.P. Phila. Co. Jan. 4, 2023 Powell, J.), the trial court issued a Rule 1925 Opinion addressing various issues following a motor vehicle accident trial in which a defense verdict was entered.
Of note was the trial court’s conclusion that it properly denied Plaintiff’s request to admit evidence of photographs that did not pertain to any of the Plaintiff’s injuries. The court found that such evidence was not relevant or probative on the issues presented.
More specifically, in this case, the court noted that the Plaintiff’s credibility had been called into question as the Plaintiff attempted to introduce into evidence pictures of a knee surgery that were not pictures of the Plaintiff’s knee. It was also noted that the pictures did not depicted a type of surgery that was completed on the Plaintiff.
The court noted that, since the photographs of the knee that the Plaintiff sought to introduce were not actually pictures of the Plaintiff’s knee, the court found that the evidence was irrelevant in that any minimal probative value of the picture was severely outweighed by the danger of unfair prejudice. The court noted that the only purpose of the photos appeared to be to shock the jury and to attempt to garner sympathy for the Plaintiff.
The court also asserted in its Rule 1925 Opinion that it had properly excluded the expert testimony of the Plaintiff's expert, Dr. Lance Yarus, where the expert had noted a "suspected" knee injury based upon a tele-medicine meeting with the Plaintiff. The court found that such testimony did not meet the reasonable degree of medical certainty standard.
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2023).
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2023).
Tuesday, April 18, 2023
CUMMINS LAW IS HIRING
Associate Attorney - Insurance Defense Firm
Clarks Summit, PA
Cummins Law, an Insurance Defense Firm located in Clarks Summit, PA, seeks a full-time associate attorney preferably with 1-3 years experience. Judicial clerkship experience a plus. Attorney will be tasked with handling all aspects of the defense of civil litigation matters, with a focus on auto accident and premises liability matters. Excellent writing, communication, research and analytical skills required.
Cummins Law offers a friendly, fast-paced office environment along with an excellent benefits package, including a 401(k) plan, and medical, dental, and vision coverage.
Interested candidates should submit a cover letter, resume and writing sample along with salary requirements to info@CumminsLaw.net.
Monday, April 17, 2023
Motion To Dismiss Granted Where Attempt At Service By Mail Found to Be Deficient
In the case of Staretz v. Wal-Mart Stores East, LP, No. 3:22-CV-00967 (M.D. Pa. March 3, 2023 Mehalchick, J.), Federal Magistrate District Court Judge Karoline Mehalchick recommended that a Defendant’s F.R.C.P. 12 (b)(6) Motion to Dismiss be granted on the grounds that the Plaintiff failed to properly serve the Defendant with the lawsuit.
The court pointed out that the return receipt for the purported service by mail was illegible and that the Plaintiff provided no other evidence to establish the authority of the signee to accept service on behalf of the Defendant.
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| Federal Mag. Judge Karoline Mehalchick M.D. Pa. |
Judge Mehalchick noted that the rules of service must be strictly followed as service of process is how the court obtains jurisdiction over a defendant.
Given that the signature on the return receipt of the attempted service by mail was illegible and given that there was no other evidence that the Defendant received actual notice of the lawsuit, the court found that the Plaintiff’s attempt at service could not be considered to have been completed in “good faith” as required by Pennsylvania law and, as such, the failed efforts by the Plaintiff to complete service were not found to have tolled the statute of limitations.
Accordingly, Judge Mehalchick recommended that the Defendant's Motion to Dismiss be granted.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm.
Friday, April 14, 2023
Court Addresses Insurance Coverage Issues In Case Involving Fire Loss To Building In Process of Being Renovated
According to the Opinion, the case involved representatives of a Buddhist temple that had purchased a former Poconos resort with plans to convert the property into a retreat center. The Plaintiff had acquired “builders’ risk - rehabilitation and renovation” insurance coverage from the Defendant insurance companies based upon the recommendation of the Defendant insurance agency.
After the building at issue was destroyed in a fire, the insured submitted a claim to the carrier pursuant to the coverages for direct physical loss to an “existing building” and “building materials” while “in the course of rehabilitation or renovation.”
The insurance companies denied that the fire loss claim on various grounds. In response, the Plaintiff filed this lawsuit for breach of contract and bad faith. In the event that it was determined that no coverage existed, the Plaintiff also asserted a negligence claim against the insurance agency for allegedly failing to recommend and procure an appropriate insurance policy.
As noted, the cross Motions for Summary Judgment were denied, the court found that issues of fact precluded the entry of summary judgment on the motions filed by both the Plaintiff and the various Defendants.
Anyone wishing to review a copy of this decision may click this LINK.
Trial Court Rejects Carrier's Request To Intervene To Put Coverage Question On Verdict Slip
In the case of Hannibal v. Solid Waste Serv., Inc., Feb. Term, No. 01172 (C.P. Phila. Co. Dec. 29, 2022 Shreves-Johns, J.), the court found that the Defendant’s liability insurance company could not intervene in this premises liability action for the limited purpose for submitting Interrogatories in aid of determining whether the Plaintiff’s accident was excluded under the insurance company’s insurance policy.
This case arose out of an incident during which the Plaintiff was working at a state prison when he was injured in an accident in a work-related event.
The trial court denied the Defendant’s insurance company’s Petition to Intervene after finding that the insurance company’s liability was uncertain and that the insurance company did not have a legally enforceable interest in the case at hand.
The court issued its ruling after reviewing the categories of permissible intervenors as defined under Pa. R.C.P. 2327.
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2023).
Source of image: Photo by Oleksandr Pidvalnyi on www.pexels.com.
Thursday, April 13, 2023
ARTICLE: Pa. Supreme Court Completes U-Turn on Validity of Household Exclusion
Below is a copy of my recent article which was published in the March 30, 2023 edition of the Pennsylvania Law Weekly and which is republished here with permission:
Pa. Supreme Court Completes U-Turn on Validity of Household Exclusion
March 30, 2023
By Daniel E. Cummins
Back in 2019, in the case of Gallagher v. GEICO Indemnity, 201 A.3d 131, 138 (Pa. 2019), the Pennsylvania Supreme Court ruled that the household exclusion, found in automobile insurance policies, violated Pennsylvania’s Motor Vehicle Financial Responsibility Law and was, therefore, not enforceable under any circumstance.
With its Gallagher decision, the Pennsylvania Supreme Court threw open the door for injured parties to seek uninsured (UM) and underinsured (UIM) motorists benefits coverage in a wide variety of new circumstances. The decision reversed 20 years of precedent and resulted in expensive litigation on the issue in many pending cases. Plaintiffs also revived old cases in which the household exclusion had been previously applied against them to preclude coverage. A class action lawsuit in this regard even developed.
Also, other injured parties began to pursue new uninsured and underinsured motorists claims which, prior to the Gallagher decision, might not have been paid out by insurance companies due to an application of the household exclusion. It is certainly possible that some of those claims were simply paid out by some carriers due to the complete eradication of the household exclusion by the Pennsylvania Supreme Court in Gallagher. Other carriers still attempted to assert the household exclusion and these cases were litigated with mixed results in the federal and state courts.
But not all justices on the Pennsylvania Supreme Court agreed with the Gallagher decision. In his dissenting opinion in Gallagher and again in his concurring opinion in Donovan, Pennsylvania’s “Great Dissenter,” Justice David N. Wecht, described the Gallagher decision as a “mistake” and noted that “the enormity of the court’s blunder quickly became apparent as state and federal courts struggled to apply (and make sense of) Gallagher’s reasoning.” See Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145, 1163 (Pa. 2021).
Now, in a recent spate of decisions, the Pennsylvania Supreme Court has retreated from its unduly expansive decision in Gallagher in which the court had noted that it had eradicated the household exclusion across the board. In the end, like a driver making a surreptitious U-turn and hoping no one was watching, the Pennsylvania Supreme Court has backpedaled on the issue.
As a result, the household exclusion has recovered from the death knell sounded by the Pennsylvania Supreme Court in the Gallagher decision and now instead remains a valid exclusion in Pennsylvania in most circumstances.
The Household Exclusion
Most automobile insurance policies contain a household exclusion. The basic premise of the household exclusion is that an insured is only permitted to recover uninsured (UM) or underinsured (UIM) motorist benefits under coverage that they have paid for by way of payment of premiums. In other words, the exclusion upholds the principle that you can’t get something for nothing.
More specifically, the household exclusion typically applies to a scenario where an insured in a household owns multiple motor vehicles. After that insured in involved in an accident, that injured party sues the driver who caused the accident and then turns to his or her own automobile insurance policy covering the vehicle that was involved in the accident for UIM benefits. That insured then also attempts to also recover UM/UIM benefits under another automobile insurance policy or policies issued by the same or different insurance companies that cover other vehicles in the same household which vehicles were not involved in the accident.
The household exclusion works to prevent the carriers covering the other noninvolved vehicles in the household from having to pay out UIM benefits to the injured party. The rationale is that the carrier that issued the policy on the other vehicle in the household was not paid a premium to provide coverage for injuries that resulted when the injured party was occupying a different vehicle from the same household.
‘Seismic’ Change in the Law
In what was called a “seismic” change in the law, the Pennsylvania Supreme Court held in Gallagher v. GEICO Indemnity, 201 A.3d 131, 138 (Pa. 2019), that the household exclusion, which the court noted was allegedly “buried in an amendment” to the policy, was invalid and unenforceable. In the Gallagher decision, the Supreme Court deviated from decades of precedent upholding the validity of the household exclusion and instead ruled that the household exclusion violated Pennsylvania’s Motor Vehicle Financial Responsibility Law and was, therefore, not enforceable.
More specifically, in Gallagher, the Supreme Court wrote “we hold that the household vehicle exclusion violates the MVFRL; therefore, these exclusions are unenforceable as a matter of law.” The exclusion was found to be in violation of the MVFRL the household exclusion was viewed by the court as impermissibly operating as a de facto waiver of stacked UM or UIM coverage when the MVFRL required insurance companies to actually secure written waivers of UIM coverage from its insureds.
In the Gallagher decision, the Pennsylvania Supreme Court did not limit its decision to the facts before it. As such, the decision was read as an eradication by the Pennsylvania Supreme Court of the household exclusion across the board. See Gallagher, 201 A.3d at 139 n. 8. (“As in every case, we are deciding the discrete issue before the court and holding that the household vehicle exclusion is unenforceable because it violates the MVFRL.”).
In so ruling, the majority in Gallagher, in seemingly regrettable language, noted, “We recognize that this decision may disrupt the insurance industry’s current practices; however, we are confident that the industry can and will employ its considerable resources to minimize the impact of our holding.”
Expressing his disagreement with the majority opinion in Gallagher and foreshadowing his own later majority opinion in the Mione case, Wecht issued a strong dissenting opinion in the Gallagher decision.
Wecht noted that the majority in Gallagher “upended the court’s well-established precedent” that had upheld the household exclusion. Wecht scoffed at the fact the “majority’s parting wisdom to Pennsylvania insurers is simply that they should use their ‘considerable resources’ to mitigate the damage that the court inflicted” in the Gallagher decision.
Wecht confirmed that the Gallagher decision was rife with incomplete and flimsy logic regarding an alleged de facto waiver of coverage and noted that the decision would only serve to result in an increase of the cost of automobile accident insurance which was “the very outcome that the General Assembly sought to avoid when it enacted the MVFRL.”
In his later concurring opinion in the Donovan case, a chagrined Wecht confirmed that “Gallagher was a mistake, but we must all live with it now.”
Wecht also cautioned his fellow jurists on the Supreme Court that unfortunate decisions like Gallagher would leave the court unnecessarily “destined to remain in the exclusion-umpiring business for the foreseeable future.”
As wisely predicted by Wecht his dissenting opinions in Gallagher and again in his concurring opinion in Donovan, the Gallagher decision unfortunately threw automobile law in Pennsylvania into a tizzy and resulted in expensive litigation on the issue, including a class action.
While most federal courts obediently followed the Gallagher decision as the new, expansive law of the land that eradicated the household exclusion in Pennsylvania, some state trial court and Superior Court judges instead chose to more specifically apply the elements of the doctrine of stare decisis. Those other more astute judges who applied the doctrine of stare decisis, thereby limited the Gallagher decision to its specific facts and otherwise ruled that the household exclusion remained enforceable in certain circumstances distinguishable from those facts presented in the Gallagher case.
In an apparent move not to run afoul of the Pennsylvania Supreme Court’s decision in Gallagher, certain Pennsylvania Superior Court panels listed their post-Gallagher decisions upholding the household exclusion as “nonprecedential.” See Erie Insurance Exchange v. Colebank, No. 1244 WDA 2021 (Pa. Super. 2022); see also Erie Insurane Exchange v. Sutherland, No. 1113 WDA 2020 (Pa. Super. 2021).
However, in Erie Insurance Exchange v. Mione, 253 A.3d 754 (Pa. Super. 2021), the case that would eventually work its way up to the Pennsylvania Supreme Court, the Pennsylvania Superior Court published its decision in which it distinguished the Gallagher decision and upheld the insurance company’s application of a household exclusion. But, before the Pennsylvania Supreme Court would decide the Mione case, it would first reaffirm its finding that the household exclusion was unenforceable in another decision.
Pennsylvania Supreme Court Decision Reaffirms That Household Exclusion Is Invalid
In Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021), the Pennsylvania Supreme Court doubled down on its finding that the household exclusion was invalid by reaffirming its previous decision in Gallagher v. GEICO and again ruling that plaintiffs need not worry about the household exclusion provision as it was invalid as violative of Pennsylvania’s MVFRL and, therefore, unenforceable.
In Donovan, while still ruling that the household exclusion was invalid, the Pennsylvania Supreme Court attempted to quietly began its retreat from its overly expansive “blunder” of a decision in Gallagher without acknowledging it was doing so. See Donovan, 256 A.3d at 1163 (Wecht, J., Concurring)
More specifically, although the majority in Gallagher had both almost gleefully presented its decision as eradicating the household exclusion across the board and told the insurance industry to use its considerable resources to figure it out, in Donovan, the court instead attempted to say (with a straight face) that it had instead only ruled in Gallagher that the household exclusion was only “unenforceable as applied to the facts of Gallagher.”
Regardless of the Pennsylvania Supreme Court’s refusal to acknowledge its reluctant retreat from its expansive language in Gallagher relative to the household exclusion and all of the confusion and litigation that came from the Gallagher decision as a result, the court still came to the same conclusion as to the invalidity of the household exclusion in the Donovan case. More specifically, the Supreme Court in Donovan noted that, while the household exclusion was found to be unenforceable in Gallagher where the insured did not execute a waiver of stacking, the exclusion was also unenforceable under the facts of Donovan as well where the waiver signed by the insured was found to be deficient and, therefore, invalid.
In the end, the Donovan court again stated that, in either case, the household exclusion cannot operate as a de facto waiver of stacked coverage where the MVFRL requires insurance companies to secure written waivers of stacking from its insureds. Wecht concurred in the Donovan result but felt compelled to again note that the “flimsy” de facto waiver rationale behind the majority’s decisions on the household exclusion “ignore binding precedent” and was “at odds with the text of the MVFRL.”
Pennsylvania Supreme Court Reverses Course
In the Pennsylvania Supreme Court’s most recent pronouncement on the issue in the case of Erie Insurance Exchange v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023), the court unanimously fell into line behind an opinion written by Justice David N. Wecht and held that the household exclusion is indeed valid and enforceable in certain circumstances.
Most notably, in the Mione case, the Supreme Court unanimously rejected the plaintiff’s arguments that the high court’s 2019 ruling in Gallagher v. Geico should be interpreted to broadly invalidate all household exclusions in all cases across the board in Pennsylvania. In Mione, the court wrote, “We reiterate today that the holding in Gallagher was based upon the unique facts before us in that case, and that the decision there should be construed narrowly.”
Although the Pennsylvania Supreme Court had definitively stated otherwise in the Gallagher decision, Wecht confirmed in the Mione decision that the Pennsylvania Supreme Court “continues to reject the view that household vehicle exclusions are ipso facto unenforceable.”
In the case of Erie Insurance Exchange v. Mione, the court addressed the enforceability of two household vehicle exclusions in a pair of automobile insurance policies. The distinguishing fact in this case was that the vehicle that the injured party was operating at the time of the accident did not even have UM or UIM coverage. As such, there was no stacking issue implicated and, therefore, there was no need to conduct the analysis of whether any valid stacking waivers had been secured from the insured in writing. Thus, there was no danger of the household exclusion even acting as a de facto waiver of stacked coverage in this case.
In the end, whereas the Pennsylvania Supreme Court had previously repeatedly and broadly ruled that household exclusions are unenforceable, that court now held that household exclusions do indeed remain enforceable under Pennsylvania law in certain circumstances.
The Pennsylvania Supreme Court in Mione ultimately concluded that the lower courts along this case’s rise up the appellate ladder had correctly distinguished the Gallagher decision on the facts and had correctly enforced the household exclusions as contained in the insured’s automobile insurance policies. In the Mione decision, the injured party was precluded from obtaining UIM benefits that the injured party had not paid for and the goal of the MVFRL of containing rising automobile insurance costs was thereby furthered.
Implications of the ‘Mione’ Decision
The most important implication of the Mione decision is the confirmation that the household exclusion remains valid and enforceable in Pennsylvania in certain circumstances. Given that the exclusion may no longer be considered to have been eradicated across the board by the unfortunately worded Gallagher opinion, going forward, order has been restored by the Mione decision and each household exclusion case will again have to be considered against the more recent appellate precedent on the issue.
Also, prior to the Mione decision, it appeared almost certain that the regular use exclusion found in automobile accident cases was also on its way to being eradicated as a matter of course by the Pennsylvania Supreme Court under an argument that the regular use exclusion also allegedly acted as a de facto waiver of coverage. This was so based upon the Pennsylvania Supreme Court’s penchant for engaging in exclusion-umpiring and for legislating new law through its application of the “flimsy” de facto waiver rationale.
However, with Mione and the question of whether the de facto waiver rationale was of any continuing validity, the eradication of the regular use exclusion is no longer a certainty.
It remains to be seen how the Supreme Court will address the validity of that exclusion. That issue is currently pending before the court in the case of Rush v. Erie Insurance Exchange and a decision is expected to be handed down in that matter sometime later this year in what will hopefully be a tightly worded opinion providing clear appellate guidance limited to the facts before the court.
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.
Pa. Supreme Court Completes U-Turn on Validity of Household Exclusion
March 30, 2023
By Daniel E. Cummins
Back in 2019, in the case of Gallagher v. GEICO Indemnity, 201 A.3d 131, 138 (Pa. 2019), the Pennsylvania Supreme Court ruled that the household exclusion, found in automobile insurance policies, violated Pennsylvania’s Motor Vehicle Financial Responsibility Law and was, therefore, not enforceable under any circumstance.
With its Gallagher decision, the Pennsylvania Supreme Court threw open the door for injured parties to seek uninsured (UM) and underinsured (UIM) motorists benefits coverage in a wide variety of new circumstances. The decision reversed 20 years of precedent and resulted in expensive litigation on the issue in many pending cases. Plaintiffs also revived old cases in which the household exclusion had been previously applied against them to preclude coverage. A class action lawsuit in this regard even developed.
Also, other injured parties began to pursue new uninsured and underinsured motorists claims which, prior to the Gallagher decision, might not have been paid out by insurance companies due to an application of the household exclusion. It is certainly possible that some of those claims were simply paid out by some carriers due to the complete eradication of the household exclusion by the Pennsylvania Supreme Court in Gallagher. Other carriers still attempted to assert the household exclusion and these cases were litigated with mixed results in the federal and state courts.
But not all justices on the Pennsylvania Supreme Court agreed with the Gallagher decision. In his dissenting opinion in Gallagher and again in his concurring opinion in Donovan, Pennsylvania’s “Great Dissenter,” Justice David N. Wecht, described the Gallagher decision as a “mistake” and noted that “the enormity of the court’s blunder quickly became apparent as state and federal courts struggled to apply (and make sense of) Gallagher’s reasoning.” See Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145, 1163 (Pa. 2021).
Now, in a recent spate of decisions, the Pennsylvania Supreme Court has retreated from its unduly expansive decision in Gallagher in which the court had noted that it had eradicated the household exclusion across the board. In the end, like a driver making a surreptitious U-turn and hoping no one was watching, the Pennsylvania Supreme Court has backpedaled on the issue.
As a result, the household exclusion has recovered from the death knell sounded by the Pennsylvania Supreme Court in the Gallagher decision and now instead remains a valid exclusion in Pennsylvania in most circumstances.
The Household Exclusion
Most automobile insurance policies contain a household exclusion. The basic premise of the household exclusion is that an insured is only permitted to recover uninsured (UM) or underinsured (UIM) motorist benefits under coverage that they have paid for by way of payment of premiums. In other words, the exclusion upholds the principle that you can’t get something for nothing.
More specifically, the household exclusion typically applies to a scenario where an insured in a household owns multiple motor vehicles. After that insured in involved in an accident, that injured party sues the driver who caused the accident and then turns to his or her own automobile insurance policy covering the vehicle that was involved in the accident for UIM benefits. That insured then also attempts to also recover UM/UIM benefits under another automobile insurance policy or policies issued by the same or different insurance companies that cover other vehicles in the same household which vehicles were not involved in the accident.
The household exclusion works to prevent the carriers covering the other noninvolved vehicles in the household from having to pay out UIM benefits to the injured party. The rationale is that the carrier that issued the policy on the other vehicle in the household was not paid a premium to provide coverage for injuries that resulted when the injured party was occupying a different vehicle from the same household.
‘Seismic’ Change in the Law
In what was called a “seismic” change in the law, the Pennsylvania Supreme Court held in Gallagher v. GEICO Indemnity, 201 A.3d 131, 138 (Pa. 2019), that the household exclusion, which the court noted was allegedly “buried in an amendment” to the policy, was invalid and unenforceable. In the Gallagher decision, the Supreme Court deviated from decades of precedent upholding the validity of the household exclusion and instead ruled that the household exclusion violated Pennsylvania’s Motor Vehicle Financial Responsibility Law and was, therefore, not enforceable.
More specifically, in Gallagher, the Supreme Court wrote “we hold that the household vehicle exclusion violates the MVFRL; therefore, these exclusions are unenforceable as a matter of law.” The exclusion was found to be in violation of the MVFRL the household exclusion was viewed by the court as impermissibly operating as a de facto waiver of stacked UM or UIM coverage when the MVFRL required insurance companies to actually secure written waivers of UIM coverage from its insureds.
In the Gallagher decision, the Pennsylvania Supreme Court did not limit its decision to the facts before it. As such, the decision was read as an eradication by the Pennsylvania Supreme Court of the household exclusion across the board. See Gallagher, 201 A.3d at 139 n. 8. (“As in every case, we are deciding the discrete issue before the court and holding that the household vehicle exclusion is unenforceable because it violates the MVFRL.”).
In so ruling, the majority in Gallagher, in seemingly regrettable language, noted, “We recognize that this decision may disrupt the insurance industry’s current practices; however, we are confident that the industry can and will employ its considerable resources to minimize the impact of our holding.”
Expressing his disagreement with the majority opinion in Gallagher and foreshadowing his own later majority opinion in the Mione case, Wecht issued a strong dissenting opinion in the Gallagher decision.
Wecht noted that the majority in Gallagher “upended the court’s well-established precedent” that had upheld the household exclusion. Wecht scoffed at the fact the “majority’s parting wisdom to Pennsylvania insurers is simply that they should use their ‘considerable resources’ to mitigate the damage that the court inflicted” in the Gallagher decision.
Wecht confirmed that the Gallagher decision was rife with incomplete and flimsy logic regarding an alleged de facto waiver of coverage and noted that the decision would only serve to result in an increase of the cost of automobile accident insurance which was “the very outcome that the General Assembly sought to avoid when it enacted the MVFRL.”
In his later concurring opinion in the Donovan case, a chagrined Wecht confirmed that “Gallagher was a mistake, but we must all live with it now.”
Wecht also cautioned his fellow jurists on the Supreme Court that unfortunate decisions like Gallagher would leave the court unnecessarily “destined to remain in the exclusion-umpiring business for the foreseeable future.”
As wisely predicted by Wecht his dissenting opinions in Gallagher and again in his concurring opinion in Donovan, the Gallagher decision unfortunately threw automobile law in Pennsylvania into a tizzy and resulted in expensive litigation on the issue, including a class action.
While most federal courts obediently followed the Gallagher decision as the new, expansive law of the land that eradicated the household exclusion in Pennsylvania, some state trial court and Superior Court judges instead chose to more specifically apply the elements of the doctrine of stare decisis. Those other more astute judges who applied the doctrine of stare decisis, thereby limited the Gallagher decision to its specific facts and otherwise ruled that the household exclusion remained enforceable in certain circumstances distinguishable from those facts presented in the Gallagher case.
In an apparent move not to run afoul of the Pennsylvania Supreme Court’s decision in Gallagher, certain Pennsylvania Superior Court panels listed their post-Gallagher decisions upholding the household exclusion as “nonprecedential.” See Erie Insurance Exchange v. Colebank, No. 1244 WDA 2021 (Pa. Super. 2022); see also Erie Insurane Exchange v. Sutherland, No. 1113 WDA 2020 (Pa. Super. 2021).
However, in Erie Insurance Exchange v. Mione, 253 A.3d 754 (Pa. Super. 2021), the case that would eventually work its way up to the Pennsylvania Supreme Court, the Pennsylvania Superior Court published its decision in which it distinguished the Gallagher decision and upheld the insurance company’s application of a household exclusion. But, before the Pennsylvania Supreme Court would decide the Mione case, it would first reaffirm its finding that the household exclusion was unenforceable in another decision.
Pennsylvania Supreme Court Decision Reaffirms That Household Exclusion Is Invalid
In Donovan v. State Farm Mutual Automobile Insurance, 256 A.3d 1145 (Pa. 2021), the Pennsylvania Supreme Court doubled down on its finding that the household exclusion was invalid by reaffirming its previous decision in Gallagher v. GEICO and again ruling that plaintiffs need not worry about the household exclusion provision as it was invalid as violative of Pennsylvania’s MVFRL and, therefore, unenforceable.
In Donovan, while still ruling that the household exclusion was invalid, the Pennsylvania Supreme Court attempted to quietly began its retreat from its overly expansive “blunder” of a decision in Gallagher without acknowledging it was doing so. See Donovan, 256 A.3d at 1163 (Wecht, J., Concurring)
More specifically, although the majority in Gallagher had both almost gleefully presented its decision as eradicating the household exclusion across the board and told the insurance industry to use its considerable resources to figure it out, in Donovan, the court instead attempted to say (with a straight face) that it had instead only ruled in Gallagher that the household exclusion was only “unenforceable as applied to the facts of Gallagher.”
Regardless of the Pennsylvania Supreme Court’s refusal to acknowledge its reluctant retreat from its expansive language in Gallagher relative to the household exclusion and all of the confusion and litigation that came from the Gallagher decision as a result, the court still came to the same conclusion as to the invalidity of the household exclusion in the Donovan case. More specifically, the Supreme Court in Donovan noted that, while the household exclusion was found to be unenforceable in Gallagher where the insured did not execute a waiver of stacking, the exclusion was also unenforceable under the facts of Donovan as well where the waiver signed by the insured was found to be deficient and, therefore, invalid.
In the end, the Donovan court again stated that, in either case, the household exclusion cannot operate as a de facto waiver of stacked coverage where the MVFRL requires insurance companies to secure written waivers of stacking from its insureds. Wecht concurred in the Donovan result but felt compelled to again note that the “flimsy” de facto waiver rationale behind the majority’s decisions on the household exclusion “ignore binding precedent” and was “at odds with the text of the MVFRL.”
Pennsylvania Supreme Court Reverses Course
In the Pennsylvania Supreme Court’s most recent pronouncement on the issue in the case of Erie Insurance Exchange v. Mione, No. 89 MAP 2021 (Pa. Feb. 15, 2023), the court unanimously fell into line behind an opinion written by Justice David N. Wecht and held that the household exclusion is indeed valid and enforceable in certain circumstances.
Most notably, in the Mione case, the Supreme Court unanimously rejected the plaintiff’s arguments that the high court’s 2019 ruling in Gallagher v. Geico should be interpreted to broadly invalidate all household exclusions in all cases across the board in Pennsylvania. In Mione, the court wrote, “We reiterate today that the holding in Gallagher was based upon the unique facts before us in that case, and that the decision there should be construed narrowly.”
Although the Pennsylvania Supreme Court had definitively stated otherwise in the Gallagher decision, Wecht confirmed in the Mione decision that the Pennsylvania Supreme Court “continues to reject the view that household vehicle exclusions are ipso facto unenforceable.”
In the case of Erie Insurance Exchange v. Mione, the court addressed the enforceability of two household vehicle exclusions in a pair of automobile insurance policies. The distinguishing fact in this case was that the vehicle that the injured party was operating at the time of the accident did not even have UM or UIM coverage. As such, there was no stacking issue implicated and, therefore, there was no need to conduct the analysis of whether any valid stacking waivers had been secured from the insured in writing. Thus, there was no danger of the household exclusion even acting as a de facto waiver of stacked coverage in this case.
In the end, whereas the Pennsylvania Supreme Court had previously repeatedly and broadly ruled that household exclusions are unenforceable, that court now held that household exclusions do indeed remain enforceable under Pennsylvania law in certain circumstances.
The Pennsylvania Supreme Court in Mione ultimately concluded that the lower courts along this case’s rise up the appellate ladder had correctly distinguished the Gallagher decision on the facts and had correctly enforced the household exclusions as contained in the insured’s automobile insurance policies. In the Mione decision, the injured party was precluded from obtaining UIM benefits that the injured party had not paid for and the goal of the MVFRL of containing rising automobile insurance costs was thereby furthered.
Implications of the ‘Mione’ Decision
The most important implication of the Mione decision is the confirmation that the household exclusion remains valid and enforceable in Pennsylvania in certain circumstances. Given that the exclusion may no longer be considered to have been eradicated across the board by the unfortunately worded Gallagher opinion, going forward, order has been restored by the Mione decision and each household exclusion case will again have to be considered against the more recent appellate precedent on the issue.
Also, prior to the Mione decision, it appeared almost certain that the regular use exclusion found in automobile accident cases was also on its way to being eradicated as a matter of course by the Pennsylvania Supreme Court under an argument that the regular use exclusion also allegedly acted as a de facto waiver of coverage. This was so based upon the Pennsylvania Supreme Court’s penchant for engaging in exclusion-umpiring and for legislating new law through its application of the “flimsy” de facto waiver rationale.
However, with Mione and the question of whether the de facto waiver rationale was of any continuing validity, the eradication of the regular use exclusion is no longer a certainty.
It remains to be seen how the Supreme Court will address the validity of that exclusion. That issue is currently pending before the court in the case of Rush v. Erie Insurance Exchange and a decision is expected to be handed down in that matter sometime later this year in what will hopefully be a tightly worded opinion providing clear appellate guidance limited to the facts before the court.
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.
Wednesday, April 12, 2023
CUMMINS LAW IS HIRING
Associate Attorney - Insurance Defense Firm
Clarks Summit, PA
Cummins Law, an Insurance Defense Firm located in Clarks Summit, PA, seeks a full-time associate attorney preferably with 1-3 years experience. Judicial clerkship experience a plus. Attorney will be tasked with handling all aspects of the defense of civil litigation matters, with a focus on auto accident and premises liability matters. Excellent writing, communication, research and analytical skills required.
Cummins Law offers a friendly, fast-paced office environment along with an excellent benefits package, including a 401(k) plan, and medical, dental, and vision coverage.
Interested candidates should submit a cover letter, resume and writing sample along with salary requirements to info@CumminsLaw.net.
Tuesday, April 11, 2023
Tort Talk Selected As One of the Top 200 Law Blogs In The World
Recieved word that the Tort Talk Blog has been selected to be featured in The Inaugural Edition of The Global Top 200 Law Blogs, which covers the very best law blogs written by lawyers and law firms.
The Global Top 200 Law Blogs is written by PracticeSource.com and The House of Butter Blog. Those sources have selected what they think "are the best 200 blogs written in the English Language by lawyers, barristers & law firms from around the world."
I send thanks to all who have helped me to keep Tort Talk relevant and interesting by sending me court decisions over the past 14 years since I started Tort Talk. By sharing information on cases that have been rendered around the Commonwealth of Pennsylvania you have helped to bring to light law that might not have been otherwise highlighted.
Thank you.
Source of top image: Photo by Monstera on www.pexels.com.
Sanctions Awarded For Unreasonable and Vexatious Litigation
In the case of Chicka v. Hearing Health PA., LLC, No. 2:21-CV-1405 (W. D. Pa. Feb. 23, 2023 Horan, J.), the court found that a Plaintiff’s attorney was subject to sanctions for unreasonable and vexatious litigation where the Plaintiff’s attorney unnecessarily delayed the proceedings for over a year as the case remained mired in the pleadings given that defense counsel was required to prepare multiple Motions to Dismiss to address repeated substantive and procedural errors that should have been easily remedied through simple cooperation.
The court noted that, under 28 U.S.C. §1927, an attorney who multiples the proceedings unreasonably and vexatiously may be personally liable for the resulting costs, expenses, and attorney’s fees incurred.
The court found that the four (4) elements required to be shown for sanctions were met in this case, including the elements of (1) multiplied proceedings; (2) unreasonable and vexatious conduct; (3) increased costs of the proceedings; and (4) bad faith or intentional misconduct.
The court noted that it would schedule a separate hearing to determine the amount of sanctions to be awarded.
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 23, 2023).
Monday, April 10, 2023
Summary Judgment Denied In Wal-Mart Slip and Fall Case
In the case of Taylor v. Wal-Mart Stores East, LP, No. 2:22-CV-00495-CCW (W.D. Pa. March 2, 2023 Wiegand, J.), the court denied summary judgment in a slip and fall case.
In this matter, the court found that genuine issues of material fact existed as to whether or not the Plaintiff had an opportunity to see and avoid what would have otherwise been an obvious spill on the floor given that the Plaintiff’s view was blocked by other people in the aisle and where the Plaintiff’s attention may have been distracted by one of the Defendant’s employees, who was giving the Plaintiff directions
The court also noted that a reasonable person is not required to be aware of the dangers that may exist at the far end of a relatively lengthy department store aisle.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm.
Source of image: Photo by Pesce Huang on www.unsplash.com.
Pennsylvania Superior Court Reviews Discovery Issues Involving Attorney-Client Privilege and Work Product Doctrine
In the case of Holland v. The Physical Therapy Inst., No. 1515 WDA 2021 (Pa. Super. March 17, 2023 Olson, J., Dubow, J., and Collins, J.), (Op. by Collins, J.) [non-precedential], the court addressed several discovery issues and the issue of whether an appeal from a discovery order is appropriate.
With regard to the ability of a party to appeal from a discovery order, the court noted that, generally, discovery orders are deemed interlocutory and are not immediately appealable, because they do not serve to dispose of the litigation in its entirety.
Yet, discovery orders that require the disclosure of privilege materials are generally found to be appealable under Pa. R.A.P. 313 where the issue of privilege is separable from the underlying issues presented.
Based upon this rule of law, the court quashed the appeal in part and affirmed it in part and remanded the matter back to the trial court with further instructions.
On the substantive issues, the court noted that the appeal involved a six-part discovery order that required the Defendants to provide documents dealing with financial and investment-related matters as well as communications with counsel in this case involving a breach of contract action.
The Defendants asserted that the lower court erred by not conducting in-camera review of the disputed documents prior to making its ruling. The Defendants additionally asserted that the court committed various errors of law or abuses of discretion in its discovery order.
In this decision, the Pennsylvania Superior Court provided its latest review of the attorney-client privilege and the work product doctrine.
The Superior Court noted that the trial court, in finding that the Defendants had waived the attorney/client and the work-product privileges did not conduct any in-camera review of certain documents, despite having already conducted an in-camera review of other documents.
The court found that a remand was appropriate in light of this ambiguity. On remand, the trial court was directed to ascertain whether the Defendants waived the privileges noted and, to conduct an in-camera review of potentially privilege material before making a determination as to whether the documents at issue were indeed discoverable.
The Superior Court also noted that the trial court, on remand, must unequivocally determine whether allowing for punitive damages-related discovery is appropriate under the circumstances as required by Pa. R.C.P. 4003.7, which relates to discovery of financial information of a Defendant in a punitive damages case.
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 20, 2023).
Based upon this rule of law, the court quashed the appeal in part and affirmed it in part and remanded the matter back to the trial court with further instructions.
On the substantive issues, the court noted that the appeal involved a six-part discovery order that required the Defendants to provide documents dealing with financial and investment-related matters as well as communications with counsel in this case involving a breach of contract action.
The Defendants asserted that the lower court erred by not conducting in-camera review of the disputed documents prior to making its ruling. The Defendants additionally asserted that the court committed various errors of law or abuses of discretion in its discovery order.
In this decision, the Pennsylvania Superior Court provided its latest review of the attorney-client privilege and the work product doctrine.
The Superior Court noted that the trial court, in finding that the Defendants had waived the attorney/client and the work-product privileges did not conduct any in-camera review of certain documents, despite having already conducted an in-camera review of other documents.
The court found that a remand was appropriate in light of this ambiguity. On remand, the trial court was directed to ascertain whether the Defendants waived the privileges noted and, to conduct an in-camera review of potentially privilege material before making a determination as to whether the documents at issue were indeed discoverable.
The Superior Court also noted that the trial court, on remand, must unequivocally determine whether allowing for punitive damages-related discovery is appropriate under the circumstances as required by Pa. R.C.P. 4003.7, which relates to discovery of financial information of a Defendant in a punitive damages case.
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 20, 2023).
Thursday, April 6, 2023
CUMMINS LAW IS HIRING
Associate Attorney - Insurance Defense Firm
Clarks Summit, PA
Cummins Law, an Insurance Defense Firm located in Clarks Summit, PA, seeks a full-time associate attorney preferably with 1-3 years experience. Judicial clerkship experience a plus. Attorney will be tasked with handling all aspects of the defense of civil litigation matters, with a focus on auto accident and premises liability matters. Excellent writing, communication, research and analytical skills required.
Cummins Law offers a friendly, fast-paced office environment along with an excellent benefits package, including a 401(k) plan, and medical, dental, and vision coverage.
Interested candidates should submit a cover letter, resume and writing sample along with salary requirements to info@CumminsLaw.net.
Wednesday, April 5, 2023
Improper Venue Preliminary Objections Granted in Favor of Corporate Defendant
In the case of Morehart v. Germania Country Store & Lodge, LLC, No. CV-22-01040 (C.P. Lyc. Jan. 25, 2023 Carlucci, J.), the court granted a Defendant’s request to transfer a lawsuit to the county where the Plaintiff sustained injuries and where the Defendant corporation was headquartered.
In this matter, the Plaintiff filed a premises liability lawsuit against the Defendant for injuries allegedly sustained when the Plaintiff allegedly fell while in one of the Defendant’s stores.
The Plaintiff filed a lawsuit in Lycoming County. The Defendant filed Preliminary Objections asserting that venue should be Potter County, where the injury was sustained and where the Defendant’s corporation was headquartered.
The court reviewed the issue under Pa. R.C.P. 2179 and 1006(b) and noted that a personal injury action against the corporation or a similar entity may be brought in a county where the corporation regularly conducts business.
The court further noted that, in determining where a corporation regularly conducts business, the court should consider the nature of the corporation’s actions in the county in terms of both the quantity and quality of those actions.
Although the Plaintiff in this matter sought to bring a lawsuit in the county where the Defendant routinely traveled to purchase inventory, the court found this contact to be incidental rather than necessary to the Defendant’s purpose of operating a retail store.
As such, the court granted the Defendant’s Preliminary Objections and order the matter to be transferred to the Court of Common Pleas of Potter County.
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2023).
Philadelphia County Court Transfers Venue of Products Liability Case to Bucks County
In the case of Watson v. Baby Trend, Inc., Aug. Term 2021, Case No. 210802189 (C.P. Phila. Co. Dec. 16, 2022 Cohen, J.), the court filed a Rule 1925 Opinion requesting the Superior Court to affirm the trial court’s granting of a Defendant corporation’s Preliminary Objections asserting improper venue in Philadelphia County.
According to the Opinion, the Plaintiff filed this products liability lawsuit alleging that their 11 month old child died while in a car seat manufactured by the Defendant.
The Plaintiffs filed their lawsuit in Philadelphia County. The Defendant filed Preliminary Objections to the Complaint and sought to transfer venue from Philadelphia County to Bucks County.
After allowing for discovery on the issue, the court sustained the Preliminary Objections and issued and Order transferring the case to Bucks County.
The Plaintiffs filed an appeal, which prompted the trial court to issue this Rule 1925 Opinion. In this Opinion, the court in Watson stated that, while a Plaintiff’s choice of forum is to be given great weight, that choice is not absolute. The court noted that, under Pennsylvania Rules of Civil Procedure 2179, personal injury action against the corporation or a similar entity may be brought in a county where that Defendant regularly conducts business.
Under the applicable law, when determining whether venue is proper in this type of case against a corporation, the courts are required to apply a quality/quantity analysis.
After reviewing the record, the court noted that the Defendant’s direct to consumer sales in Philadelphia represented just .0018% of the company’s total 2021 sales and that the company otherwise sold their product through big box retailers such as Target, Wal-Mart, and Amazon.
The court found that the Defendant corporation did not otherwise have any direct connection with Philadelphia County and did not maintain any places of business in the city or even in the state of Pennsylvania. It was additionally noted that the company did not buy any products or material from any Pennsylvania vendors.
According to the trial court, the company’s activities within Philadelphia failed to meet both the quality and quantity prongs of the venue analysis. Consequently, the court found that venue was not proper in its jurisdiction.
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2023).
Under the applicable law, when determining whether venue is proper in this type of case against a corporation, the courts are required to apply a quality/quantity analysis.
After reviewing the record, the court noted that the Defendant’s direct to consumer sales in Philadelphia represented just .0018% of the company’s total 2021 sales and that the company otherwise sold their product through big box retailers such as Target, Wal-Mart, and Amazon.
The court found that the Defendant corporation did not otherwise have any direct connection with Philadelphia County and did not maintain any places of business in the city or even in the state of Pennsylvania. It was additionally noted that the company did not buy any products or material from any Pennsylvania vendors.
According to the trial court, the company’s activities within Philadelphia failed to meet both the quality and quantity prongs of the venue analysis. Consequently, the court found that venue was not proper in its jurisdiction.
Anyone wishing to review a copy of this decision may click this LINK.
Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2023).
Tuesday, April 4, 2023
Venue of Products Liability Case Transferred From Eastern District to Middle District
In the case of Twigg v. Varsity Brands Holding Co., Inc., No. 21-CV-00768 (E.D. Pa. Jan. 12, 2023 Goldberg, J.), the court granted a Defendant’s Motion to Transfer Plaintiff’s products liability action from the Eastern Federal District Court of Pennsylvania and out of the Middle Federal District Court of Pennsylvania.
According to the Opinion, the Plaintiff was a teacher and coach who was throwing indoor batting practice from behind an L-screen that was covered with safety netting. A hit ball ripped through the safety netting, hitting the Plaintiff in the eye and causing permanent damages.
The Plaintiff brought strict liability claims against the Defendant and filed a suit in the Eastern District Court of Pennsylvania. The Plaintiff’s main argument for filing in that county was that a majority of the Plaintiff’s treating doctors and nurses were allegedly located within that district.
After reviewing the record before it, the Eastern District Judge Goldberg ruled that the Defendants had demonstrated that the case could have been brought in the Middle District of Pennsylvania and that the balancing of the factors required under 28 U.S.C. §1404(a) and the Jumara case weighed in favor of the transfer of the case from the Eastern District to the Middle District.
The court found that venue was proper in the Middle District because the injury occurred in a county located within that district. The court otherwise found that the convenience of the party’s factor was neutral and that more witnesses were actually located in the Middle District.
The court also noted that the allegedly defective product was sold to a public school in the Middle District for use by its students and employees and that the case was, therefore, fairly characterized as a localized controversy within the Middle District Federal Court jurisdiction of Pennsylvania. As such, the Defendant’s Motion to Transfer was granted.
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 (Feb. 28, 2023).
Eastern District Court Dismisses German Office of Porsche From Products Liability Claim Due to Lack of Jurisdiction
In this matter, the Plaintiff had purchased a used Porsche from a non-Porsche-brand dealer. Years later, after noting problems with the vehicle’s engine and, the Plaintiff was instructed by Porsche to bring it to the nearest dealership for inspection and repair.
On the way to the dealership, smoke allegedly began coming through the AC vents into the passenger area allegedly causing the Plaintiff to suffer permanent lung damage and asthma.
The Plaintiff filed a products liability claim against or Porsche Cars North America, Inc. and Porsche AG.
Both Defendants moved to dismiss the case for lack of personal jurisdiction.
The court had previously ruled that it could exercise general personal jurisdiction over Porsche Cars North America.
The court granted Porsche AG’s Motion to Dismiss for lack of personal jurisdiction.
The court first ruled that it did not have general personal jurisdiction over Porsche AG as that entity was not “at home” in Pennsylvania. Rather, that company was incorporated in, and had its headquarters in, Germany.
The court denied to find that Porsche North America was a mere alter ego of Porsche, AG, which would have permitted the court to impute general personal jurisdiction.
Rather, the court found that there was sufficient evidence that the two entities were separate legal entities that interacted with each other pursuant to arm’s length agreement and that neither party exercised dominion or control over the other.
The court additionally stated that there was an agreement between the parties that expressly disclaimed any authority for Porsche North America to act as an agent or legal representative of Porsche AG.
The court also found that it lacked specific jurisdiction over Porsche AG in that there was no evidence that that entity had purposefully directed its business activities in Pennsylvania.
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 (March 16, 2023).
The court also found that it lacked specific jurisdiction over Porsche AG in that there was no evidence that that entity had purposefully directed its business activities in Pennsylvania.
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 (March 16, 2023).
Source of image: Photo by Clement Roy on www.unsplash.com.
Monday, April 3, 2023
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PLEASE CONSIDER CUMMINS MEDIATION SERVICES FOR YOUR MEDIATION NEEDS
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