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TORT TALK

Is There Liability Against PennDOT if a Tree Falls on a Passing Motorist?

In the case of Schmidt v. Pennsylvania Dept. of Transp., No. 33 C.D. 2023 (Pa. Cmwlth. Oct. 11, 2024 Jubelirer, P.J., Dumas, J., and Wolf, J.) (Op. by Dumas, J.), the Pennsylvania Commonwealth Court reversed a trial court Order and remanded the case with instructions that summary judgment be entered in favor of PennDOT based upon sovereign immunity. 

According to the Opinion, the subject accident involved a Plaintiff who sustained fatal injuries after the branch of a large tree, which was overhanging the roadway, fell and crushed his vehicle as the Plaintiff drove by.

According to the Opinion, the tree was planted on property owned by the Southeastern Pennsylvania Transportation Authority. The court noted that, although the branches of the tree extended over the road and PennDOT’s right-of-way, the base of the tree was located outside of PennDOT’s right-of-way.

Accordingly, the appellate court found that PennDOT was entitled to sovereign immunity under claims against it where the tree did not derive, originate from, or have as its source any PennDOT real estate.

The court held that the case therefore did not fall under the real estate exception to the sovereign immunity allowed for under the Sovereign Immunity Act, 42 Pa. C.S.A. §8501-8564.

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


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (Nov. 5, 2024).

Source of image:  Photo by Efrem Efre on www.pexels.com.

Judge Mannion of Federal Middle District Court Allows Punitive Damages Claim to Proceed in Trucking Accident Case

In the case of Thomas v. Orozco-Pineda, No. 3:24-CV-00288-MEM (M.D. Pa. Nov. 8, 2024 Mannion, J.), Judge Malachy E. Mannion of the Federal Middle District Court of Pennsylvania addressed a Motion to Dismiss in which a trucking company Defendant asserted that a Plaintiff-spouse’s loss of consortium claim, presented in an Amended Complaint, was barred by the statute of limitations. The court also addressed a request by the Defendant for the dismissal of the Plaintiff’s punitive damages claims. The Defendant’s Motion to Dismiss was denied.

Relative to the argument by the Defendant that the Plaintiffs had presented a loss of consortium claim in the Amended Complaint after the statute of limitations had expired, the court found that there were issues of fact that needed to be resolved before the statute of limitations issue could be determined. 

With regard to the Defendants’ argument that there were no factual disputes to resolve with regards to the statute of limitations barring the loss of consortium claim, Judge Mannion disagreed and concluded that “factual disputes or the lack thereof are also issues to be determined on a Motion for Summary Judgment not a Motion to Dismiss.”

Relative to the Defendant’s Motion to Dismiss the Plaintiffs’ punitive damages claims, the court also found this motion to be premature at the current stage of the litigation.

Judge Mannion noted that the courts of Pennsylvania have routinely denied requests to dismiss punitive damages claims in motor vehicle accident cases at the outset of litigation. The court noted that, as a general rule, the courts have deemed motions to dismiss punitive damages claims as premature and inappropriate where, as here, Complaint contains allegations of reckless conduct.

Judge Mannion additionally noted that, because the question of whether punitive damages are proper often turns on a defendant’s state of mind, i.e., the elements of malice or ill will required for punitive damages claims, the court found that question of whether the punitive damages claim should be dismissed cannot be resolved on the pleadings alone but must wait until the development of a full factual record through discovery or at trial.

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

Source: Article – “Judge Leaves Statute of Limitations Question In Injury Crash Suit For A Jury.” By: Riley Brennan Pennsylvania Law Weekly (Nov. 12, 2024).

Source of image:  Photo by Caleb Ruiter on www.unsplash.com.

Delay Damages Claim Denied Based on Technical Defect to Delay Damages Motion

In a case of first impression in the case of Arreguin v. Kinsing, No. 889 EDA 2023 (Pa. Super. Nov. 5, 2024 Stabile, J, Dubow, J., and Sullivan, J.) (Op. by Sullivan, J.) (Stabile, J., dissenting), the Pennsylvania Superior Court ruled that a trial court’s finding that a Plaintiff’s failure to comply with the mandate of the delay damages Rule found at Pa. R.C.P. 238, requiring that a Motion for Delay Damages begin with a required Notice to the Defendant, should be affirmed.

According to the Opinion, the Plaintiff secured a non-jury trial verdict in the amount of $4.1 million dollars and then filed a Motion for Delay Damages.

Although the Motion for Delay Damages was timely filed, the trial court denied the Motion on a technicality where the Plaintiff did not follow the mandate of Rule 238(c) that the motion begin with the following notice to the Defendant: “You are hereby notified to file a written answer to the attached Motion for Delay Damages within twenty (20) days from the filing of the motion or the delay damages sought in the motion may be added to the verdict or decision against you.”

The Superior Court agreed with the trial court that the wording of Rule 238(c) unambiguously required that the “[t]he motion shall begin with the following notice.”  The Rule then includes the exact language and form for the mandated Notice.

In this case, the Plaintiff did not dispute the fact that she failed to attach the mandated Notice. Moreover, the court noted that the Plaintiff did not argue that the “shall” in the rule was ambiguous.

The Superior Court rejected the Plaintiff’s argument that the Rule’s plain language should be disregarded and that the court should instead look at the intent of the Pennsylvania Supreme Court enacting the delay damages Rule. The Plaintiff asserted that the intent of the Rule was to protect defendants from plaintiffs who seek delay damages without giving notice.

The Superior Court rejected the Plaintiff’s argument after finding that the Rule was unambiguous and did not require additional statutory construction.

Anyone wishing to review a copy of this decision may click this LINK.  Judge Stabile's Dissenting Opinion can be viewed HERE.


Source: Article – “Pa. Court Denies Procedurally Deficient Request for Delay Damages in $4.1M Personal Injury Verdict.” By Rily Brennan Pennsylvania Law Weekly (Nov. 6, 2024).

Source of image:  Photo by Ahsanjay on www.unsplash.com.

Trial Court Confirms that Defendant Must Plead Facts In Support of New Matter Defenses Asserted

In the case of Kieser v. Beyer, No. CV23-00,923 (C.P. Lyc. Co. Sept. 11, 2024 Lindhardt, J.), the court addressed Preliminary Objections filed against a Defendant’s New Matter in a medical malpractice action.
The court sustained the Preliminary Objections in part and overruled the Preliminary Objections in part.

The court found that one paragraph of the New Matter, when read with another paragraph, properly asserted that the medical system Defendant had no control over a doctor who allegedly caused the Plaintiff’s injuries. As such, that paragraph of the new matter was allowed to stand. 

However, the court ruled that other paragraphs in the New Matter that asserted affirmative defenses of contributory/comparative negligence, assumption of the risk, release, accord and satisfaction, or set off and/or that the Plaintiffs’ damages were caused by the natural progression of the Plaintiff’s medical condition were all struck for failure to plead any facts in support of those alleged defenses.

In so ruling, the court provided a detailed review of the current status of the law regarding the pleading of a New Matter as set forth under Pa. R.C.P. 1030 and otherwise. The court reiterated the general rule that Pennsylvania is a fact-pleading state and that the inquiry into the sufficiency of pleading involves a question of whether material facts on which a cause of action or a defense has been stated in a concise and summary form in the pleading.

As noted, the court issued a decision in this case that allowed certain defense raised in the New Matter to stand but not others due to the lack of supporting factual allegations. In striking the improper New Matter defenses, the court did allow the Defendants at issue to file an Amended Answer and New Matter.

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


Source: The Legal Intelligencer Common Pleas Case Alert. www.Law.com (Oct. 30, 2024).

Trial Court Addresses Joinder of Additional Defendants in a Medical Malpractice Case

In the case of Gilbert v. UMPC Williamsport, No. CV-21-00,169 (C.P. Lyc. Co. Sept. 16, 2024 Lindhardt, J.), the court overruled Preliminary Objections filed by Additional Defendants relative to their joinder into this medical malpractice matter.

In so ruling, the court noted that, in this case involving alleged improper and negligent pre- and post-natal treatment to the Plaintiff and her child, the joinder of the Additional Defendants would be allowed where the statutes of limitations on the claims presented would not expire until several years in the future and, some of which, had not yet begun to run.

The court also noted that allowing the joinder to proceed would be the most sensible approach on the case presented in terms of judicial economy and other interests.

The court additionally found that the allegations in the Joinder Complaint were sufficiently clear to enable the Additional Defendants to prepare their defenses.

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


Source: The Legal Intelligencer Common Pleas Case Alert. www.Law.com (Oct. 30, 2024).

Civil Trial Bifurcated Where Parties Did Not Advise Court of Proper Time Needed To Complete Trial

In the case of Major v. Five Start Equipment, Inc., No. 2020-CV-3550 (C.P. Lacka. Co. Oct. 28, 2024 Nealon, J.), the court addressed a Motion to Bifurcate the liability issues from the damages issues at the trial of a personal injury action involving a motor vehicle accident during which a pedestrian was struck.

In this decision, the court noted that it was the parties' plan to present numerous lay witnesses and expert witnesses. The court ultimately ruled that the liability and damages portions of this action would be split given that there would not be enough time in the allotted trial window in order to hear from all of the witnesses.  This was due, in part, to the parties not originally requesting sufficient within which to complete the trial when the issue of the anticipated length of the trial previously came up at a pre-trial conference.

The court noted that the jury selected for the trial would only decide the issues of liability. If that first jury entered a finding in favor of the Plaintiff, a separate jury would then be called to determine the amount of compensatory damages.

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

Chester County Court Addresses Post-Koken Issues of Note

Levels of Coverage in Question

In the case of Crook v. Erie Insurance Exchange, No. 2014-00867-TT (C.P. Chester Co. June 14, 2024 Binder, J.), the court addressed various Preliminary Objections filed by a carrier in a Post-Koken uninsured (UM) motorist litigation.

Among the issues raised by the second level UIM carrier defendant in this case involving two (2) levels of UIM coverage was an argument that the claim against the second level UIM carrier was premature given that it was not clear as to whether or not the Plaintiff’s alleged damages would be fully covered by the first level of UM coverage.

The court emphasized that, while the second level of UM carrier was entitled to a credit for the policy limits under the first level UIM coverage, the Plaintiff was not required to exhaust the first level of UM coverage before pursuing the secondary coverage available from the second level UM carrier.

The court also addressed the separate issue of whether the Plaintiff properly also included a claim against the uninsured tortfeasor in this matter and whether that was an improper joinder.

The court reviewed cases on this issue involving permissive joinder of tort and UIM claims under Pa. R.C.P. 2229 and found that the same were indeed permitted. In this regard, Judge Binder elected to follow the approach enunciated by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Bingham v. Poswistilo, 24 Pa. D. & C. 5th 17 (C.P. Lacka. Co. 2011 Nealon, J.) and allowed the claims to proceed into discovery under the same caption.

Accordingly, the court overruled the objections to Joinder at this pre-trial stage of the case without prejudice to the rights of the parties to request a bifurcation at the trial of the tort and the UIM claims and/or to otherwise request limits on the disclosure of the identity or existence of insurance coverage at trial.

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


Source: “The Legal Intelligencer Common Pleas Case Alert” (Nov. 6, 2024).

What Constitues Recklessness in Terms of Operators of Emergency Vehicles?

In the case of Piotrowski v. Department of Health, No. 1232 C.D. 2023 (Pa. Cmwlth. Oct 24, 2024 Ceisler, J., Dumas, J., and Leavitt, S.J.) (Op. by Leavitt, S.J.), the court reviewed any Petition for an Adjudication of the Department of Health that suspended the Petitioner’s license as an emergency medical services provider for operating an ambulance in a reckless manner.

Relative to the suspension, the health department rejected the proposed adjudication of its hearing officer that the Petitioner’s operation of an ambulance en route to an emergency in excess of the posted speed limit did not, ipso facto, constitute reckless conduct.

At issue on appeal was the interpretation and application of the term “reckless” as set forth in §8121(a)(6) of the Emergency Medical Services System Act (EMS Act), 35 Pa. C.S.A. §8121(a)(6).

After a review of the matter, the Commonwealth Court reversed the health department’s adjudication.

In its Opinion, the Commonwealth Court began with a review of the Vehicle Code, which, under 75 Pa. C.S.A. §3105, grants special privileges to drivers of emergency vehicles responding to an emergency call.

The court also referred to the other provisions of the Vehicle Code that relate to vehicle speed and safety. The court noted that 75 Pa. C.S.A. §3736 prohibits reckless driving.

The court then turned to the EMS Act and noted that the Act sets forth numerous grounds for the suspension or revocation of an EMS provider’s certification. Under 35 Pa. C.S.A. §8121(a)(6), the Department of Health is authorized to discipline an EMS provider relative to the “operation of an emergency vehicle in a reckless manner….”

In this case, the Petitioner was charged with operating his ambulance in a reckless manner.

The issue before the court centered over a proper definition for the word “reckless” in this context.

The court turned to the rules of statutory construction. The court noted that the word “reckless” is not defined in the EMS Act. This allowed the court to consider dictionary sources. The court also referred to the Restatement (Second) of Torts for guidance.

In the end, the Pennsylvania Commonwealth Court held that “for a person’s conduct to be reckless,” there must be “conscious” or “deliberate” indifference to the risk of causing harm to others. In this regard, the court cited to Black’s Law Dictionary.

In this case, the court noted that the hearing officer improperly construed reckless as careless, which only implicated absent-mindedness or negligence and overlooked the conscious or deliberate intent required in order to prove recklessness as a matter of law.

Turning the facts of the case, the Petitioner was arguing that the deputy secretary erred in concluding that he violated the EMS Act.

The court noted that the evidence showed that the Petitioner drove the ambulance in excess of the posted speed limit. However, the Petitioner also noted that he was on his way to an emergency with his lights and sirens activated. There is also evidence that the ambulance crew was responding to a call of a drug overdose, making time of the essence.

The Commonwealth Court noted that there was no evidence presented that the Petitioner’s excessive speed made the accident highly probable. Rather, relative to the underlying accident at issue, the court noted that it was the decedent’s failure to stop at a posted stop sign that caused the accident.

In the end, the court noted that exceeding the speed limit alone cannot be said to be reckless conduct in this context. Finding that the Petitioner’s actions in this case did not rise to the level of recklessness, but rather showed care for the safety of others, including a victim of a drug overdose, the court found that the health department did not establish that the Petitioner had violated the EMS Act.

It is noted, however, that, although the court found that the ambulance driver did not exhibit recklessness in driving over the speed limit in the context of this case, in footnote 12 of the Opinion on page 21 of the Opinion, the court noted that there may be cases where the rate of speed of an ambulance could constitute recklessness. 

The court noted that an example of an ambulance crew driving an ambulance over the speed limit with the lights and sirens activated in order to get to a party, as opposed to a dispatch emergency, could constitute a violation of the EMS Act. 

In that footnote, the court also noted that an accident, or lack thereof, is not required to prove or disprove recklessness.

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


I send thanks to Attorney Joseph T. Healey of the Kingston, PA office of Burns White for bringing this case to my attention.

Source of image:  Photo by Camilo Jiminez on www.unsplash.com.

Court Rules That Defense Can Challenge Life Expectancy With Evidence of Plaintiff's Alcohol Abuse

In the case of Mackey v. Chipotle, No. 2:23-cv-00519-GAM (E.D. Pa. Oct. 16, 2024 McHugh, J.), the court addressed the admissibility of a Plaintiff’s history of alcohol consumption as part of a defense to a Plaintiff’s future economic damages claims in a personal injury matter.

This case arose out of a trip and fall event.

Before the court was a motion by the Plaintiff to preclude any introduction of the Plaintiff’s history of alcohol consumption. The Plaintiff was asserting that this evidence was irrelevant and prejudicial.

The Defendant contended that the Plaintiff’s consumption was relevant to the Plaintiff’s projected life expectancy and that the evidence also provided an explanation for a subsequent fall unrelated to the Plaintiff’s physical limitations.

After reviewing the evidence presented and weighing the probative value against the prejudicial impact of that evidence as required by Federal Rule of Evidence 403, the court concluded that the Plaintiff’s history of alcohol consumption was admissible as to the Plaintiff’s evidence of his life expectancy, but inadmissible for any other purpose. 

The court noted that, because life expectancy is the single most critical determinant of the estimated future damages, factors that may influence one’s life expectancy are “highly relevant” under Rules of Evidence.

While noting that evidence of alcohol consumption can create a risk of unfair prejudice under the Rules of Relevance, the court found that the evidence in this context did not substantially outweigh the highly probative value that the evidence of alcohol consumption had on the Plaintiff’s life expectancy and future damages. 

Accordingly, the evidence of Plaintiff’s alcohol consumption, which court to the Opinion was significant on a daily basis, was allowed to be introduced for the jury’s assessment in determining life expectancy. The court noted that it would provide a cautionary instruction with the intent of attempting to limit any possible prejudice.

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


Source: Article – “‘Well-Documented’ Medical Records of Alcohol Consumption Rates Maybe Considered For Life Expectancy Costs, Judge Finds.” By Riley Brennan. Pennsylvania Law Weekly (Oct. 18, 2024).

Source of image:  Photo by Clam Lo from www.pexels.com.

Federal Court Finds that Lyft Driver Able to Pursue Claim That Driver Was Owed Uninsured Motorist Coverage From Lyft

In the case of Ahtasham v. Lyft, Inc., No. 2:24-CV-01673-GJP (E.D. Pa. Pappert, J.), the Eastern District Federal Court ruled in favor with a Lyft driver in that driver’s contractual dispute with Lyft over the availability of $1million dollars in uninsured motorist coverage.

According to the Opinion, Lyft filed a Motion to Dismiss a lawsuit brought by a Lyft driver who claimed that he was entitled to uninsured motorist coverage following a motor vehicle accident.

The court determined that the terms of service agreement and a promise in a driver guidebook was a binding contract between Lyft and one of its drivers who was the Plaintiff at issue in this case.

According to the Opinion, the guidebook promised Lyft drivers that “‘we’ve got you with our $1million insurance policy,’” and that “‘there are four coverages included in our insurance policy.’” including underinsured/uninsured (UM/UIM motorist coverage).

In the Opinion, it was indicated that the Plaintiff claimed he was denied coverage by the UM carrier after he was in an accident with an uninsured driver. Coverage was denied even though Lyft previously allegedly informed the Plaintiff that he and his car would be insured.

According to the Opinion, prior to the accident, Lyft had waived the UM/UIM coverage for its Pennsylvania drivers, without informing them.

The Plaintiff filed suit against Lyst seeking entitlement to uninsured motorist benefits, as well as claims of breach of contract, fraudulent misrepresentation, violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, and negligent misrepresentation.

In his Complaint, the Plaintiff additionally sought a declaratory judgment that Lyft had a duty to provide him with up to $1 million dollars in uninsured motorist coverage.

The breach of contract claim revolved around the parties’ alleged agreement and the driver guidebook, which Lyft argued was not part of its contract with the Plaintiff.

The court concluded that the agreement’s interpretation, including whether it incorporated references to the guidebook’s UM/UIM coverage promise, was governed by California law as that was where Lyft maintained its principal place of business.

The Plaintiff claimed that the driver’s agreement and the guidebook, when considered together, constituted his contract with Lyft that he relied upon. The Plaintiff more specifically asserted that he relied upon the provision and the guidebook that “in the event of an accident…our UM/UIM coverage will apply up to $1million per accident.”

Lyft attempted to argue that this representation was barred as a matter of law by the parol evidence rule. 

The court found that the parol evidence rule did not serve to exclude evidence that is offered to explain any ambiguity or to otherwise assist in the interpretation of the terms of an alleged agreement. 

The court noted that, where it is decided by the court that the language of a contract is ambiguous or fairly susceptible of more than one interpretation, extrinsic evidence relevant to prove any of the possible meanings is admissible to assist in the determination of the term of the contract. 

The court noted that, in this matter, the agreement contained two provisions that indicated that the guidebooks promised to provide Lyft drivers with uninsured and underinsured motorist coverage was part of the contractual relationship between the drivers and the company.

Overall, the court found that the Plaintiff’s allegations that Lyft breached the guidebook’s clear promise of UM/UIM coverage was sufficient to plausibly state a claim for breach of contract.

The court also rejected arguments by Lyft that a disclaimer in the guidebook prevented the guidebook from being interpreted as it was being interpreted by the court.

In the end, the federal court judge from the Eastern District denied Lyft’s Motion to Dismiss the lawsuit brought by this Lyft driver who claims that he is entitled to uninsured motorist coverage under a Lyft Insurance policy.

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 Jimmy Kunnell of the Feasterville-Trevose, PA law firm of Kunnell Law for bringing this case to my attention.


See also: Article “Federal Judge Sized With Lyft Driver In Contractual Dispute Over $1M Uninsured Motorist Coverage” By Riley Brennan of The Legal Intelligencer (Sept. 13, 2024).

Still Time to Register or Sponsor - The Lackawanna Pro Bono Gala Set for November 14, 2024

 

Trial Court Bucks Trend and Strikes Allegations of Recklessness and Punitive Damages

In the case of Almonte v. Roaring Creek Egg Farms, LLC, No. 2019-CV-03731 (C.P. Luz. Co. Oct. 16, 2024 Pierantoni, J.), the court sustained various Defendants’ Preliminary Objections to a Plaintiff’s Second Amended Complaint against allegations of recklessness and claims for punitive damages.

This matter involved a personal injury claim arising out of a fall down event.

The court ruled that all allegations of recklessness and claims for punitive damages in the Second Amended Complaint were stricken without prejudice.  The Plaintiff was permitted to file an Amended Complaint.

No details were provided in the Order as to the rationale of the court in granting these Preliminary Objections.


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

I send thanks to Attorney Ryan McBride of the Scranton, PA office of the Weber Gallagher law firm for bringing this case to my attention.

Regular Use Exclusion Found To Be Enforceable and Applicable

In the case of Valiga v. Erie Insurance Co., No. 2021-CV-339 (C.P. Mercer Co. Oct. 7, 2024McEwin, J.), the trial court in Mercer County granted summary judgment to a carrier in a regular use case.

According to the Opinion, the Plaintiff was an individual whose job it was to ferry vehicles across the country. The record indicated that the Plaintiff would only use each vehicle one time. As such, the Plaintiff claimed that he was not regularly using a vehicle in the same context as set forth in the regular use exclusion under the policy in question.

After reviewing the language of the regular use exclusion at issue along with the current status of Pennsylvania law regarding the continuing validity of those types of exclusions, the court ruled that the purpose of the regular use exclusion is to prevent policy holders from habitually using vehicles not covered under their policy and thereby exposing insurance companies to additional liabilities unbeknownst to the insurance companies.

In other words, insureds should only get the coverage that they paid for.  If an insured is regularly using a vehicle not covered by the policy at issue and unbeknownst to that insurance carrier, then the insurance carrier should not have to provide the coverage.   

Judge McEwin confirmed that, in reviewing regular use cases, the courts do not concern their analysis to whether a particular vehicle has been used by the injured party before, but rather, whether the insured was regularly and habitually increasing potential liabilities under the policy by utilizing uncovered vehicles on a regular basis.

Here, where the injured party was in the business of transporting vehicles to purchasers after their sale, it was readily apparent that the injured party was regularly using vehicles that were not covered under the insurance company’s policy.

Accordingly, the court ruled that requiring the insurance company to pay benefits to the injured party that were beyond the scope of the policy’s coverage would be in violation of the regular use exclusion in that policy. 

Finding that the injured party in this case habitually and regularly transported vehicles that were not covered under the policy, and that the Plaintiff was injured while driving one of those uncovered vehicles, the court ruled that the regular use exclusion applied irrespective of the frequency of the use of each individual vehicle. 

As such, summary judgment was granted in favor of the insurance company.

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

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

REPRINT -- THE ART OF MEDIATING: THE GOAL IS TO SETTLE, NOT WIN

The below article of mine providing tips on handling mediations was published in the October 17, 2017 edition of The Legal Intelligencer and is republished here with permission.

Should you need any assistance in mediating cases through the end of the year or beyond, I would be happy to help through Cummins Mediation Services.  Please contact me at dancummins@CumminsLaw.net for my resume, fee schedule or to arrange for a Mediation.  

Thank you.

The Art of Mediating: The Goal Is to Settle, Not Win

The Legal Intelligencer

October 17, 2017    

By

Daniel E. Cummins

With the uncertainty of what a jury will do in a particular case and the significant costs associated with trying a case to verdict, alternative dispute resolution proceedings in the form of mediations and arbitrations have been a rising trend across the commonwealth of Pennsylvania.

The following practice tips for nonbinding mediations may assist litigants in bringing their cases to a desired resolution.

Be Fully Prepared

All too often, parties may arrive at a nonbinding mediation without having provided the opposing party with all of the 
information necessary to allow for a successful mediation.

On the plaintiff's side, there are times where a plaintiff has not yet finalized the information pertinent to the economic damages claims, such as wage loss claims or medical expenses claims. At times, the parties are still waiting for the completion of the lengthy process associated with securing health care, Medicaid or Medicare liens.

It is advisable to postpone any mediation proceedings until this information has been secured and documented so as to allow the defense to complete its evaluation and arrive at the mediation with additional settlement authority. The production of such information also provides the plaintiff with ammunition to argue for a higher settlement of the claims presented.

On the defense side, it may be advisable not to proceed to an arbitration until all written discovery, depositions and expert review of the claims presented has been completed.

Plaintiffs allowing a case to proceed to mediation before such items have been accomplished may be faced with a defense asserting that there is no additional settlement authority to be discussed at the conference but that the case may be revisited after the completion of additional discovery efforts, such as an independent medical examination of the plaintiff. Plaintiffs can take away this argument by not agreeing to proceed to mediation until such discovery tasks are completed.

Written Submissions Are Important

When proceeding to a mediation, it is important to provide the mediator with a concise, but thorough, overview of the claims and defenses presented. A concise chronology of the facts of the underlying matter will inform the mediator as to the legal issues presented and provide an initial sense as to the value of the claims asserted.

Written submissions need not contain a recitation of every medical visit or diagnostic study completed. Rather, the highlights of the plaintiff's treatment following the accident will suffice.

On the defense side, a mediation memorandum can be utilized to raise and provide support for defenses on the liability issues, the causation question and the alleged extent of the injuries and damages presented. A defense mediation memorandum can also be utilized to emphasize the plaintiff's prior medical history so as to confirm that the case presented involves an aggravation of a pre-existing condition claim.

There is also no need to provide a mediator with voluminous written materials to review. Rather, litigators should emphasize the highlights of the case through documentary evidence. Rather than providing the mediator with complete medical records, it may be advisable to only submit the notes of the important office visits and notable reports of diagnostic films and studies.

Also, rather than submitting entire transcripts of depositions, the better practice may be to submit the cover page of the deposition transcript along with the pertinent pages that may have been cited in the mediation memorandum.

In addition to not overburdening the ­mediator with unnecessary information, presenting more concise documentation will also serve to keep the cost of the mediation down as the mediator will have less to review in preparation for the proceedings.

Oftentimes, the parties will submit their mediation memorandum and supporting exhibits to the arbitrator confidentially. The better practice is to disclose your materials to the opposing party in order that the opposing party may share the same with their client in order to let their client know of the weaknesses of the case presented and the strengths of the opponent's case.

Prepare Client and Claims Representative

Most plaintiffs and some claims representative are not familiar with how the mediation process works.

The better practice is to fully inform your client that, at a mediation, the mediator will likely have all of the parties in the room for an initial conference at which updates on the case presented can be provided. At the initial conference, both parties may also be invited to provide their overview of the case presented in order to let the opposing party know how the case is viewed by the opponent.

A plaintiff should be advised that he or she may be requested by the mediator at this initial conference to provide an update as to the client's condition and treatment. In this regard, a plaintiff who admits to improvement in his or her condition with the treatment provided to date adds to the credibility of that litigant. An injured party who contends that there has been no improvement whatsoever in his or her condition despite years of treatment may have their overall credibility called into question by the opponent.

If a plaintiff is reluctant to admit improvement, the plaintiff can add the proviso of that, while he or she may have improved somewhat over time, the injuries have not resolved and continue to limit the plaintiff in his or her everyday activities of daily living.

The client should be advised that, once the initial conference is completed, the mediator will likely put each party in a separate room and commence the negotiations by traveling back and forth between the rooms in a continuing effort to bring the parties closer together towards an amicable resolution of the claims presented.

The parties should also be made aware that there may be a reiteration of the same points over and over with different emphasis on different points at different times during the course of the mediation. This is all a part of the process of helping each side of the litigation to fully understand and appreciate the pros and cons of the claims and defenses presented.

The client and the claims representative should also be advised that the mediator has been selected to preside over this mediation because that person has experience in evaluating the claims presented in the jurisdiction in which the case is pending. It should be noted to the parties that a mediator typically does not provide the parties with his concrete evaluation of the case presented as the job of the mediator is not to evaluate the case. Rather, the mediator's function is to facilitate negotiations between the parties towards a settlement figure that each party may not be entirely happy with but are satisfied enough to agree to conclude the matter.

Listen to What the Mediator Is Saying

When engaging in a mediation, parties may get so wrapped up in their own position that they may fail to listen to the information being provided by the mediator after the mediator has met with the opposing side.

Listening to what the mediator is reporting from his last conference with the opposing party may send signals as to where the opposing party may be willing to proceed in its next step.   Listening to such information may also assist the party hearing the information in formulating their next step in the negotiation process.

Be Clear on What Can Be Disclosed

At various times during a mediation, a party may disclose information to the mediator that the party does not wish to be disclosed to the opposing counsel.

When disclosing information to the mediator that a party does not wish to be revealed to the other side, that party should be clear in its statement to the mediator that such information should be kept confidential. Mediators will keep this information confidential to keep your trust.

The provision of such confidential information may assist the mediator in understanding certain aspects of the case and why a party may be taking a particular position on a particular issue. The disclosure of such information to the mediator confidentially may, in the end, assist the mediator in massaging the other side closer toward a settlement figure.

Willingness to Negotiate

Obviously, the success of any mediation depends upon the willingness of each party to negotiate reasonably. In addition to emphasizing the strong points of one's case, the credibility of the parties will be enhanced by that party's concession with respect to the weak points of their case presented. An admission of the weak points of a case, with an associated explanation as to how that party plans to deal with those weak points at a potential trial, will provide the mediator with information to take to the other side in the continuing negotiations on the case presented.

When going into a mediation, clients and claims representatives should be made aware that the goal is not to "win" the case, but rather to settle the case and secure compensation or close a file. Shifting the parties' focus from winning to settling prior to going into the proceedings may make all the difference in the success of a mediation. •

Daniel E. Cummins is a partner and civil litigator with the Clarks Summit law firm of Cummins Law. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.  Attorney Cummins also provides Mediation services through Cummins Mediation Services.

570-319-5899

dancummins@CumminsLaw.net

Federal Court Rejects Another Motion to Remand Filed By A Plaintiff as Gamesmanship

In the case of Street v. GAC Shipping USA, Inc., No. 24-1739 (E.D. Pa. Oct. 1, 2024 Rufe, J.), the court denied a Plaintiff’s Motion to Remand a Case to State Court.

This case arose out of a slip and fall event.   

In this decision, the court ruled that a Plaintiff will not be allowed, after a year of litigation and after the filing of a number of previous motions to remand that were denied, to amend the Plaintiff’s Complaint to join non-diverse Defendants in an effort to support another request for a remand of the case to state court.

The court noted that the non-diverse Defendants at issue in this case were not indispensable parties but only amounted to allegedly subsequently negligent healthcare providers.

The court found that the Plaintiff’s attempt at this amendment was transparently forum-shopping gamesmanship relative to an effort to get the case remanded to state court.   As such, the court struck the non-diverse Defendant from the matter and denied Plaintiff’s latest Motion to Remand the case to state court.

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 Reed Smith law firm for bringing this case to my attention.

Presenting at Practice Tips CLE

 

 Need any CLE Credits?

Daniel E. Cummins, Esq. of Cummins Law will be presenting "Practice Tips Based on the Top Civil Litigation Cases of 2024" along with Paul T. Oven of Dougherty, Leventhal & Price on November 7, 2024 at the Mohegan Sun Casino in Plains, PA.

Here is a LINK to the Agenda for the event.

Non-members welcome to attend.

For details on how to register to attend this CLE event, please click this LINK.

Catch That End-of-the-Year Wave of Settlements With Cummins Mediation Services

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Call or Email to Schedule Today

570-319-5899

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Need CLE Credits? Presenting At Upcoming PBI Seminar

 

Will be presenting "Settlement Strategies & Tips 2024" for the Pennsylvania Bar Institute (PBI) via a Live Webcast on November 6, 2024 at 1 p.m. with other panelists. 

This two-hour long CLE is designed to provide the audience with tips from Mediators and Arbitrators from around the Commonwealth of Pennsylvania to improve chances for success at such ADR proceedings.

The presenters are Daniel E. Cummins, Esq., Paul Oven, Esq., and John Noble Esq.

The program offers two substantive CLE credits.

Here is a LINK to the registration page for this CLE if you are interested.

Upcoming Civil Litigation CLE To Consider

 

 Need any CLE Credits?

Daniel E. Cummins, Esq. of Cummins Law will be presenting "Practice Tips Based on the Top Civil Litigation Cases of 2024" along with Paul T. Oven of Dougherty, Leventhal & Price on November 7, 2024 at the Mohegan Sun Casino in Plains, PA.

Here is a LINK to the Agenda for the event.

Non-members welcome to attend.

For details on how to register to attend this CLE event, please click this LINK.

Please Consider Supporting a Great Cause - The Lackawanna Pro Bono Gala

 

Superior Court Addresses Scope of Immunity Provisions Under the Mental Health Procedures Act

In the case of Toth v. Chambersburg Hospital, No. 208 MDA 2024 (Pa. Super. Oct. 15, 2024 Stevens, P.J.E., Panella, P.J.E., and Lane, J.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed the entry of a summary judgment in a case involving a Plaintiff who was diagnosed with dementia and who was injured after falling while pushing an aide away and attempting to run while under the care of a hospital.

A central issue raised in this matter was whether the Defendant was entitled to immunity under the Mental Health Procedures Act.  The Plaintiff argued that the process of walking a patient in a medical facility did not fall under the types of "treatment" for which immunity is afforded under the Act.  

The Superior Court agreed with the trial court's ruling that decisions regarding the ambulatory care of mental health facility residents within a facility are governed by the Mental Health Procedures Act and subject to the statutory immunity limits under the Act.

The Court separately ruled that the facts of the case did not support the claim of gross negligence asserted by the Plaintiff.  More specifically, the Court noted that the circumstances of the Plaintiff’s injury, which involved a Plaintiff falling after pushing an aide away and attempting to run, could not possibly rise to the level of an allegation of gross negligence on the part of the Defendants. The Pennsylvania Superior Court noted that legislature intended that “gross negligence” refer to a form of flagrant negligence where the facts support findings of liability substantially more than ordinary carelessness.

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 Reed Smith law firm for bringing this case to my attention.

Federal Court Addresses Products Liability Claims Involving a Medical Device

In the case of Ford v. St. Jude Medical, LLC, No. 3:21-CV-01765 (M.D. Pa. Sept. 23, 2024 Mehalchick, J.), the court granted in part and denied in part the Defendant’s Motion to Dismiss.

The case involved allegations that the Plaintiff fell when his pacemaker device failed.  

The court ruled that Pennsylvania law does not permit strict liability claims in prescription medical product liability litigation against medical device manufacturers. This prohibition includes strict liability design and manufacturing claims.

Judge Mehalchick additionally ruled that the Plaintiff’s claims of an implied warranty based upon different or additional Pennsylvania medical device standards were preempted. The court additionally noted that, even if these claims were not preempted, such claims would also be barred by the Restatement of Torts (Second) §402a, comment k.

Judge Mehalchick additionally ruled that a loss of consortium claim cannot be based on a contractual claim for breach of an express warranty.

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 office of Reed Smith law firm for bringing this case to my attention.

Federal Court Addresses Viability of Products Liability Claims Involving Medical Devices

In the case of Douglas v. Atrium Medical Corp., No. 3:23-CV-747-JKM (M.D. Pa. Sept. 30, 2024 Munley, J.), the court granted in part and denied in part a Motion to Dismiss after finding that settled Pennsylvania law did not allow for strict liability claims in a products liability litigation relative to claims involving prescription drugs and medical devices.

The case arose out of issues regarding the use of a hernia mesh as treatment.   

Judge Munley also denied the request for a certification of the strict liability issues for an interlocutory appeal because there was no substantial ground for a difference of opinion on this decision.

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 Reed Smith law firm for bringing this case to my attention.

Souce of image:  Photo by Vidatl Balielo, Jr. on www.pexels.com.

Need CLE Credits? Presenting on Settlement Strategies and Tips

 

Will be presenting "Settlement Strategies & Tips 2024" for the Pennsylvania Bar Institute (PBI) via a Live Webcast on November 6, 2024 at 1 p.m. with other panelists. 

This two-hour long CLE is designed to provide the audience with tips from Mediators and Arbitrators from around the Commonwealth of Pennsylvania to improve chances for success at such ADR proceedings.

The presenters are Daniel E. Cummins, Esq., Paul Oven, Esq., and John Noble Esq.

The program offers two substantive CLE credits.

Here is a LINK to the registration page for this CLE if you are interested.

Need Even More CLE Credits? Presenting At Upcoming November 7, 2024 Luzerne County Bench Bar Conference

 Need any CLE Credits?

Daniel E. Cummins, Esq. of Cummins Law will be presenting "Practice Tips Based on the Top Civil Litigation Cases of 2024" along with Paul T. Oven of Dougherty, Leventhal & Price on November 7, 2024 at the Mohegan Sun Casino in Plains, PA.

Here is a LINK to the Agenda for the event.

Non-members welcome to attend.

For details on how to register to attend this CLE event, please click this LINK.

U.S. Supreme Court Confirms When Stay Provisions of Federal Arbitration Act Apply

In the United States Supreme Court decision of Smith v. Spizzirri, 601 U.S. 472 (2024), the Court held that, when a federal district court finds that a lawsuit involves an arbitrable dispute, and a party requests a stay pending arbitration, Section 3 of the Federal Arbitration Act, 9 USCS §3, compels the court to stay the proceeding.

The United States Supreme Court additionally held that a federal district court judge does not have discretion to dismiss the suit on the basis that the claims are subject to arbitration.

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


I send thanks to Attorney Thomas J. Foley, III of the Foley Law Firm in Scranton, PA for bringing this case to my attention.

Source of image:  Photo by Adam Michael Szuscik on www.unsplash.com.

  

If A Defendant Fails to Appear For Trial, A Plaintiff Still Must Prove Case

In the case of Zappacosta v. McAvoy, No. 2024 Pa. Super. 225 (Pa. Super. Sept. 27, 2024 Panella, P.J.E., Beck, J., Colins, J.) (Op. by Colins, J.), the court addressed the entry of a default judgment against a Defendant in a breach of contract case, which default was entered due to the Defendant’s failure to appear at trial.

On appeal, the court noted that the trial court had erred in denying a motion by the Defendant to strike a default judgment.

In so ruling, the Superior Court reviewed the parameters of Pa.R.C.P. 218 which covers the actions a trial court may take if a party fails to appear at trial without a satisfactory excuse.   

The court noted that, since Pa. R.C.P. 218 did not permit a trial court to enter a judgment for failure of a Defendant to appear without requiring the Plaintiff to prove the Plaintiff’s case, it was an error of the trial court to deny the Defendant’s Motion to Strike the Default Judgment that was entered due to the Defendant’s failure to appear.

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


Source: “Court Summaries” by Timothy L. Clawges, Pennsylvania Bar News (Oct. 21, 2024).

Berks County Trial Court Judge Denies Motions to Bifurcate Post-Koken Case

In the case of Sekulski v. Walker and Erie Ins. Exch., No. 19-14211 (C.P. Berks Co. Sept. 17, 2024 Nevius, J.), the Berks County Court of Common Pleas denied the Motion to Sever filed by both the third party Defendant and the UIM carrier Defendant in a Post-Koken motor vehicle accident case.

The court ruled that the third party tort liability claim would be tried jointly with the Plaintiff’s first party claim for underinsured motorist benefits, with Erie Insurance identified as a real party and interest to those proceedings.

In its detailed Order, the court noted that the Plaintiff’s claim against all Defendants arose from the same factual background and involved common questions of law and fact. 

As such, the court noted that judicial economy favored one trial of all claims. The court was also influenced by the fact that a severance of the case into two separate matters or trial would result in an undue hardship and burden on the Plaintiffs who would be required to present their case twice at a presumed substantial cost and with additional delays.

The court also noted a concern with the likelihood of possible inconsistent verdicts.

The court also rejected the tortfeasor Defendant’s argument that having a UIM carrier as a Co-Defendant would prejudice that Defendant in light of the anticipated repeated references to insurance at the trial in front of the jury.  Judge Nevius noted that there would be no reference to the tortfeasor’s liability insurance.   The court additionally noted that it could craft jury instructions to address any concerns about possible prejudice in this regard.

Judge Nevius additionally noted that this decision did not address the bifurcation of any potential bad faith claims given that it did not appear that any such claims were at issue in this matter.

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

I send thanks to Attorney Peter F. Schuchman and Attorney Julia Adams of the Wyomissing, PA office of Kozloff Stoudt for bringing this case to my attention.