Summary Judgment Granted in Parking Lot Case Based on Open and Obvious Doctrine

In the case of Ersick v. Joe’s Store, No. 3082-CV-2022 (C.P. Westmoreland Co. July 25, 2024 Smail, J.), the court addressed issues in a premises liability case.

According to the Opinion, this matter involved a trip and fall in the parking lot of a store. The Plaintiff allegedly fell over a black and yellow parking block that she allegedly could not see because her view was obscured by the truck from which she exited in a parking spot immediately before she fell.

The defense filed a Motion for Summary Judgment arguing that, first, the Plaintiff failed to present evidence to identify what caused her to fall and, secondly, that the parking blocks at issue were known by the Plaintiff or were otherwise open and obvious. 

The Plaintiff countered with an argument that the evidence revealed that her fall was caused by a defective parking block and that the question of a dangerous condition should be lift to a jury.

Reviewing then record before it, the court found that the Plaintiff did indeed identify which parking block allegedly caused her to fall.

However, the court agreed with the defense that the parking block at issue was an open and obvious condition that the Plaintiff admittedly observed prior to her fall down event. It was additionally indicated that the incident occurred during daylight conditions, that the Plaintiff had previously visited the store during the day, that the Plaintiff recalled attempting to step over the block, and that the Plaintiff was able to recall that the parking block had yellow or orange stripes on it.

As such, the court granted summary judgment to the defense after finding that the condition which allegedly caused the Plaintiff to fall was an open and obvious condition.

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


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

Save the Date: November 14, 2024 - Lackawanna Pro Bono Gala

 

Judge Karoline Mehalchick of Middle District Federal Court Issues Novel Civil Practice Order on the Use of Generative Artificial Intelligence in Documents Filed With Court

In the case of E.J. v. Johnson, No. 3:23-CV-1636 (M.D. Pa. Aug. 19, 2024 Mehalchick, J.), Judge Karoline Mehalchick of the Federal Middle District Court of Pennsylvania has taken the innovative step of issuing a Civil Practice Order on Use of Generative Artificial Intelligence.

Under this Order, which appears to be the first of its kind in the Federal Middle District Court of Pennsylvania, and possibly even the first of its kind out of any state or federal court in Pennsylvania, Judge Mehalchick ordered that if a party to any litigation pending before her has utilized AI in preparation of any filing, that must include a Certificate of Use of Generative AI with the filing.

In that Certificate of Use of Generative AI, the party is required to disclose and certify the following:

(1) The specific AI tool utilized

(2) The portions of the filing prepared by the AI program; and

(3) That a person has checked the accuracy of any portion of the document generated by AI, including all citations and legal authority

In the Order, Judge Mehalchick cautioned that failure to comply with this Civil Practice Order could result in sanctions.

Judge Karoline Mehalchick
M.D. Pa.

Judge Mehalchick also directed that all parties and counsel review the conclusions on pgs. 15-16 of the Joint Formal Opinion of the Pennsylvania Bar Association and Philadelphia Bar Association regarding the use of Artificial Intelligence.  That Joint Opinion can be viewed at this LINK.

Judge Mehalchick otherwise concluded her Order by directing counsel to be mindful of their ethical and professional obligations before the Court in this regard.

Anyone wishing to review Judge Mehalchick's Civil Practice Order on the Use of Generative Artificial Intelligence may click this LINK.

I send thanks to Attorney Jerry Geiger of the Stroudsburg, PA law firm of Newman Williams, P.C. for bringing this novel Order to my attention.

In terms of any such Rule in the Pennsylvania state courts, the word is that the Pennsylvania Supreme Court plans to address AI issues on a statewide basis with uniform rules so as to avoid issues with different counties having different local rules on the matter.

Source of AI image: Photo by Solen Feyissa on www.pexels.com.

Motion To Dismiss in UIM Bad Faith Claim Denied

In the case of Debree v. American States Ins. Co., No. 3:20-CV-00247-JKM (M.D. Pa. July 30, 2024 Munley, J.), the court denied a UIM carrier’s Motion for Partial Summary Judgment in a case alleging breach of contract and insurance bad faith.

The Defendant focused its Motion for Partial Summary Judgment on the Plaintiff’s bad faith claims. The Defendants asserted that the Plaintiff could not establish that the Defendant did not have a reasonable basis for denying benefits under the policy or that the Defendant knew or recklessly disregarded its allegedly lack of a reasonable basis in denying the claim.

According to the Defendant, the record before the court established that the parties merely disagreed over the value of the UIM claim and that such agreement does not constitute bad faith.

The Plaintiff argued that factual disputes existed regarding the Defendant’s investigation into the claim, which disputes precluded the entry of summary judgment on the bad faith claim.

The court noted that, after a review of the case before it, and keeping in mind that bad faith claims are very facts-specific, the court denied the Motion for Partial Summary Judgment after finding that the Plaintiff had submitted sufficient evidence to allow the Plaintiff to proceed with the bad faith claim.

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

Service of Summons Issues Addressed By Federal Court

In the case of Papin v. Taylor, No. 23-2591 (E.D. Pa. July 2, 2024 Surrick, J.), the court granted a Motion to Dismiss based on service of process issues.

In this case, the court noted that the Plaintiff never attempted to serve his twice reinstated Writ of Summons.  As such, the summons was noted to be ineffective to toll the statute of limitations.

The federal district court noted that, under Lamp v. Heyman, a Writ of Summons is effective to commence a cause of action only where the Plaintiff made good faith efforts to serve the Defendant with process. Here, the record confirmed that the Plaintiff initially made no attempt to complete service at all.

Moreover, when the Plaintiff eventually attempted to complete service, he did not follow the rules for serving an out-of-state Defendant.

In this decision, the court also reaffirmed the well-settled rule that communications with an insurance carrier Defendant do not provide a valid alternative to the completion of service.

The court also noted that settlement negotiations do not create a basis for an equitable estoppel argument against a lack of proper service argument. 

In this case, the court additionally ruled that counsel’s alleged lack of knowledge relative to the service of process issues also did not support a claim of equitable estoppel.

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


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

Pennsylvania Superior Court Addresses the Borrowed Servant Doctrine in a Workplace Accident Case (Non-Precedential)

In the Non-Precedential decision in the case of Ortiz v. Lincoln Electric Automation, Inc., No. 1384 EDA 2023 (Pa. Super. June 26, 2024 Panella, J., Nichols, J., and Beck, J.) (Op. by Panella, J.), the Pennsylvania Superior Court confirmed the entry of summary judgment in favor of a Defendant under the borrowed employee doctrine.

According to the Opinion, this matter involved a products liability case arising out of a workplace accident.

The Pennsylvania Superior Court ruled that, as a matter of law, the Plaintiff in this case could not sue the owner of the workplace where she was injured because the Plaintiff was a borrowed employee.

The court noted that, even though the Plaintiff was a temporary employee, her employment activities were under the control of the Defendant, not the temporary agency that had placed her to work at the Defendant’s location. 

Accordingly, the Superior Court agreed that the Plaintiff was the effective employee of the company to which she was temporarily assigned even though she was hired and paid by the temporary employment agency.

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


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

Source of image:  Photo by Emmanuel Ikwuegbu on www.unsplash.com.

Please Consider Saving the Date for this CLE

 

Entry of Judgment Would Be Void In Light of Lack of Proper Service

In the case of Bradford Crossing Homeowners Assoc., Inc. v. DeSimone, No. 2023-05885-IR (C.P. Chest. Co. Nov. 22, 2023 Binder, J.), the court denied a Plaintiff’s homeowner’s association’s request for the entry of judgment against a Defendant after finding that service of process was not properly completed on that Defendant.

The court noted that any judgment is void when it is entered by a court lacking personal jurisdiction due to the failure of a plaintiff to obtain proper service of original process, or a waiver of original process, or consent by a defendant to the jurisdiction of the court. 

Here, the court noted that the record included a Sheriff’s return that indicated that the Complaint and the Petition at issue were served on a third party at the property in dispute. However, nothing in the record indicated that the Defendant at issue resided at that property.  Accordingly, the court found that the attempted service was outside the scope of the general rules governing original service of process.

The court additionally noted that there was no indication in the record that the Defendant had waived his right to proper service or had otherwise consented to the court’s jurisdiction.

As such, the court stated that it could not grant the Plaintiff’s motion against the Defendant because the court lacked personal jurisdiction over the Defendant and any judgment that would be entered in the Plaintiff’s favor would be void as a matter of law in any event.

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


Source: The Legal Intelligencer Court of Common Pleas Case Alert at www.law.com (July 10, 2024).

Allegations of Recklessness And Punitive Damages Allowed to Proceed in MVA Case

In the case of Defreitas v. Arnstorf, No. 2023-CV-2022 (C.P. Lacka. Co. July 1, 2024 Gibbons, J.), the court denied a Defendant’s Preliminary Objections in the form of a demurrer asserted against the Plaintiff’s claim for punitive damages in a motor vehicle accident case.   

In its Opinion, the court reviewed Pennsylvania law regarding allegations of recklessness and claims for punitive damages viewed the claims together in deciding to overrule the Preliminary Objections that, according to the Opinion, were filed against the punitive damages claim.   

After reviewing the law, the court noted that the Plaintiff had asserted a valid claim for punitive damages where the Complaint generally alleged that the Defendant driver acted with deliberate and reckless disregard when the Defendant driver, among other things, failed to control her vehicle, failed to apply her brakes a sufficient time prior to the accident to avoid striking the Plaintiff’s vehicle, failed to take proper evasive action, failed to travel at a safe speed, and failed to stop at a red light.  The court noted that the Complaint additionally alleged that the Defendant driver acted recklessly when she drove a vehicle knowing that her driver’s license had been previously suspended due to a DUI. 

The court additionally overruled the Preliminary Objections by the Defendant owner to the claim of punitive damages after finding that the Complaint pled that the Defendant owner acted with the same deliberate and reckless disregard when she permitted the Defendant to use her vehicle despite knowing, or having reason to know, that the Defendant driver’s license had been suspended due to a DUI.   

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

Pennsylvania Superior Court Reverses Verdict In Favor of Plaintiff in Bad Faith Case

In the case of Watchward Worldwide v. Erie Insurance Exchange, No. 1221 WDA 2022 (Pa. Super. Jan. 9, 2021 Bowes, J. Kunselman, J., and Collins, J.) (Op. by Colins, J.), the Pennsylvania Superior Court vacated a lower court judgment in favor of the Plaintiff in an insurance breach of contract and bad faith claim after finding that the carrier was entitled to judgment in its favor as a matter of law on all claims presented.

In this case, the insured filed an insurance claim for loss of electronic data as a result of a computer hacking incident. At the time, the insured was covered by the carrier under a property damage and liability insurance policy that included coverage for the reproduction or replacement of electronic data.

When the insured filed a claim with the carrier for a loss caused by the deletion of its electronic data, the carrier denied the coverage claim on the grounds that the policy did not cover the loss because the electronic data that was destroyed was not on the insured’s computers and on the grounds the cost of replacing the data lost was less than the insured’s $2,500.00 deductible.

At trial, the carrier moved for a nonsuit at the end of the Plaintiff’s case based upon the defenses noted above. The jury entered a verdict in favor of the insured. The carrier then filed post-trial motions which were denied.

A non-jury trial on the Plaintiff’s bad faith claim was then scheduled. Prior to the date of that trial, the parties agreed to proceed by way of argument based upon trial evidence and written submissions along with some additional testimony. The trial court then issued its non-jury verdict on the bad faith claim finding that the carrier had acted in bad faith based upon its denial of coverage. The trial court awarded the Plaintiff $20,000.00 in punitive damages and $50,000.00 in attorneys' fees and costs.

The trial court then denied post-trial motions filed by both parties with respect to the bad faith verdict. The case was then appealed up to the Superior Court.

The Pennsylvania Superior Court ruled that the carrier’s interpretation of its own policy was correct in terms of a finding that no coverage was due to the insured under the case presented. More specifically, the Superior Court noted that the Plaintiff’s evidence did not prove that the Plaintiff’s loss exceeded the policy’s $2,500.00 deductible. As such, the Superior Court found that Erie did not breach its contract when it denied the request for insurance benefits under the policy.

Given that the Superior Court found that the contract had not been breached, the Superior Court also found that the carrier was entitled to judgment in its favor on the bad faith claims. The court otherwise also noted that, although a different aspect of the carrier’s denial of the claim presented may have been erroneous, the carrier’s decision in this regard was reasonable under the circumstances presented.

Accordingly, the bad faith claim failed because the Plaintiff was not able to show, by clear and convincing evidence, that the carrier had no reasonable basis for denying the claims presented.

In the end, the Superior Court ruled that the carrier was entitled to judgment in its favor on all claims presented. As such, the lower court judgments entered in favor of the Plaintiff were vacated and the case was remanded with instructions for the trial court to enter judgment notwithstanding the verdict in favor of the carrier.

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

PLEASE CONSIDER SAVING THE DATE -- PRESENTING AT OCTOBER 4, 2024 MONROE COUNTY BENCH BAR CONFERENCE

PLEASE CONSIDER SAVING THIS DATE -- October 4, 2024

I have been invited to prepare and present a Civil Litigation Update CLE at the October 4, 2024 Monroe County Bench Bar Conference which will take place at the Northampton Community College - Pocono Campus located in Tannersville, PA.

Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price will be a co-presenter of the program.

The program will be open to both members and non-members of the Monroe County Bar Association.

More details to follow, including on how to register.

Thank you.

Vehicle Exception to Commonwealth Immunity Reviewed by Commonwealth Court

In the case of Brown-Boyd v. SEPTA, No. 1167 C.D. 2022 (Pa. Cmwlth. July 15, 2024 Wojcik, J., Wallace, J., Leavitt, S.J.) (Op. by Wallace, J.), the Commonwealth Court affirmed the trial court’s decision denying SEPTA's Motion for Summary Judgment which was based on an argument that SEPTA was immune from suit under the Political Subdivision Tort Claims Act.  

In this case, the Plaintiff prevailed in convincing both the trial court, and the Commonwealth Court on appeal, that the facts implicated the vehicle exception to the immunity provided by the Act.

The vehicle exception to the general rule of immunity for municipal defendants provides that a Commonwealth entity may be found liable for acts resulting in damages caused by the "operation of any motor vehicle in the possession of a Commonwealth party."  See 42 Pa.C.S.A. Section 8522(b)(1).

The appellate court here affirmed the trial court's finding that the defendant bus driver was “operating” a bus for purposes of the motor vehicle exception of the sovereign immunity statute when the bus driver stopped to allow the Plaintiff to exit and allegedly refused to lower the bus’s handicap ramp which allegedly resulted in the Plaintiff falling and being injured. 

The appellate court noted that, under established case law, the “operation” of a motor vehicle covers more than simply moving the vehicle. Instead, this term also covers a variety of activities as well as the decision-making processes related to moving a vehicle.

The court primarily relied upon the plain language of the statute and the Pennsylvania Supreme Court’s discussion of the statute in the case of Balentine v. Chester Water Auth., 191 A.3d 799 (Pa. 2018). 

The court noted that, under this legal authority, the “operation” of a vehicle under this exception would include both acts and failures to act, including the Defendant bus driver’s allegedly failure in this case to lower the handicap ramp for the benefit of the Plaintiff.  In the end, the court found that the Defendant bus driver was “operating” the bus when the bus driver stopped to allow the Plaintiff to exit and allegedly refused to lower the handicap ramp.

As such, the appellate court concluded that the trial court did not err in denying the Defendants’ summary judgment motion pursuant to the vehicle exception to the sovereign immunity law.

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


Source: “The Legal Intelligencer State Appellate Case Alert,” ww.Law.com (July 31, 2024).

ARTICLE: Appellate Guidance Needed on Out-of-State Medical Expenses in Motor Vehicle Accident Cases

This article of mine was recently published in the Pennsylvania Law Weekly on July 26, 2024 and is republished here with permission.

Appellate Guidance Needed on Out-of-State Medical Expenses in Motor Vehicle Accident Cases

By Daniel E. Cummins | July 26, 2024 


Issues regarding the recoverability of medical expenses charged by out-of-state medical providers for treatment following a Pennsylvania motor vehicle accident are often disputed.

One such issue concerns whether medical expenses for treatment rendered to a person outside of Pennsylvania following a motor vehicle accident are even recoverable in a Pennsylvania motor vehicle accident lawsuit given the cost containment provisions of Pennsylvania’s Motor Vehicle Financial Responsibility Law (MVFRL).

A second related issue is whether, if such out-of-state past medical expenses are recoverable, do those past medical expenses have to be reduced in accordance with Act 6 of Pennsylvania’s MVFRL as set forth in 75 Pa.C.S.A. Section 1797 before they can be presented to, or awarded by, a jury.

While there is a lack of appellate guidance on these issues, a few notable decisions have been handed down by Pennsylvania trial court judges across the commonwealth.

Are Out-of-State Past Medical Expenses Even Recoverable?

In the case of Scheid v. Gabrell, No. 1009-CV-2000 (C.P. Pike Co. 2005), the late Judge Joseph F. Kameen Jr. of the Pike County Court of Common Pleas addressed the issue of whether medical expenses incurred by a Pennsylvania resident plaintiff for treatment rendered by an out-of-state doctor in that other state was recoverable at a motor vehicle accident trial. In this regard, Kameen had to address which state’s law to apply.

The applicable Pennsylvania statutory law in this regard is found in the Motor Vehicle Financial Responsibility Law at 75 Pa.C.S.A. Sections 1720 and 1722. These statutes, when read together, prohibit claims for past medical expenses arising out of a motor vehicle accident where the person seeking damages is eligible for other insurance coverage to cover the same expenses.

After completing a conflicts of law analysis, the trial court in Scheid chose to apply Pennsylvania law. Kameen went on to rule that, given the preclusion against recovery of medical expenses in motor vehicle accident cases as found under 75 Pa.C.S.A. Section 1720 and 1722 of Pennsylvania’s Motor Vehicle Financial Responsibility Law, the plaintiff was not permitted to pursue past medical expenses damages at trial.

In so ruling, the court in Scheid relied, in part, on the federal district court decision in the case of O’Malley v. Vilsmeier Auctions Co., 986 F. Supp. 306 (E.D.Pa. 1997). In O’Malley, the court ruled that Section 1722 of the Pennsylvania Motor Vehicle Financial Responsibility Law could not preclude an out-of-state insurer from obtaining subrogation against their out-of-state insureds. The court ruled in this fashion after finding that the prohibition against subrogation contained in section 1720 could not be applied to out-of-state insurers in their dealings with out-of-state insureds.

In Scheid, the court was instead faced with a Pennsylvania plaintiff who was involved in a Pennsylvania accident with a Pennsylvania defendant. The plaintiff who lived close to one of the borders of Pennsylvania, crossed state lines to treat with medical providers located outside of Pennsylvania. The plaintiff claimed that her out-of-state medical providers were asserting liens and were looking to be paid for the treatment that was rendered.

Prior to trial, the defense filed a motion in limine seeking to preclude the plaintiff from recovering the claimed medical expenses given the prohibition under Pennsylvania law that precluded any medical provider from seeking subrogation for medical expenses in a Pennsylvania motor vehicle accident matter and which law also therefore precluded the plaintiffs from recovering such medical expenses at trial as a result.

The trial court in Scheid agreed with the defense and the Pennsylvania resident plaintiff’s claims for medical expenses were precluded from being presented at trial.

Contrary results have been reached by Pennsylvania courts in this regard where the plaintiff is not a resident of Pennsylvania.

In the federal court case of Armstrong v. Antique Automobile Club of America, 670 F. Supp. 2d 387, 394 (M.D. Pa. 2009), the court ruled that the anti-recovery provisions of Pennsylvania Motor Vehicle Financial Responsibility Law found under Sections 1720 and 1722 did not apply in action to recover for injuries sustained by a motor vehicle accident plaintiff who was a resident of Texas and who was insured by an out-of-state insurer for medical expenses. In that case, the plaintiff had presented evidence that her out-of-state insurer had contractual right of subrogation as to payments for medical expenses that it had paid.

In so ruling, the Armstrong court, in part, relied upon the decision of Gagnon v. Lemoyne Sleeper, 1:CV-0502081, 2008 WL 5061677 at *3 (M.D. Pa. 2008) for the proposition that Sections 1720 and 1722 cannot be applied against an out-of-state insurer with out-of-state insureds. See also Abed-Rabuh v. Hoobrajh, No. 3:17-CV-15, 2019 WL 4935208, at *2 (W.D. Pa. July 2, 2019); Serrano v. Cowles, No. CIV.A. 06-5075, 2008 WL 4442532, at *2 (E.D. Pa. Sept. 30, 2008).

The above trial court decisions support the notion that, where the plaintiff is an out-of-state resident, that the plaintiff will be able to present evidence of, and recover for, his past medical expenses for out-of-state treatment. However, a Pennsylvania resident plaintiff, who treats outside of Pennsylvania, might not be able to cover those past medical expenses under the applicable law. Whether this is a fair application of the law or not may be the subject of future decisions on the issue.

Do Out-of-State Past Medical Expenses Have to be Reduced?

Another issue involving expenses for out-of-state treatment following a motor vehicle accident that occurred in Pennsylvania is whether such expenses must be reduced Act 6 of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. Section 1797, before such expenses are presented to a jury for consideration. That issue was just recently addressed, as a matter of first impression, by Judge Alan D. Hertzberg of the Allegheny County Common Pleas Court in the case of Yurek v. Bower, No. GD18012387 (C.P. Allegh. Co. July 3, 2024).

In the case of Yurek, Hertzberg issued a Rule 1925 opinion following a motor vehicle accident and, as part of the post-trial issues presented, considered the issue of whether medical bills related to treatment provided to the plaintiff by an out-of-state doctor are subject to reduction under Act 6.

Hertzberg wrote that neither party provided him with any appellate case law on the issue and the judge also noted that he could not locate an appellate decision addressing this topic.

According to the opinion, following the subject accident, the plaintiff underwent a cervical spine fusion surgery which was performed in Florida.

The case eventually went to trial and, as part of the verdict, the jury awarded $150,000 in past medical expenses, most of which was related to the cost of the surgical treatment that took place in Florida.

During the post-trial proceedings, one of the issues raised was the trial court’s refusal to reduce the amount of the past medical expenses award any more than down to the figure of $148,000, which was the actual cost of the surgery plus the surgical center’s charges.

The defense asserted that the trial court erred in denying the defense motion to mold the jury’s $150,000 past medical expenses award down to $9,882.00 under an application of Act 6 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. Section 1797(a).

Section 1797 of the Pennsylvania Motor Vehicle Financial Responsibility Law allows for a recovery of medical bills at up to 110% of what Medicare would pay a provider for the same service.

According to the opinion, at trial, Hertzberg allowed the plaintiff to introduce the total amount of the medical bills into evidence without any Act 6 reduction. However, the court also confirmed at trial that it would consider a for a post-trial motion requesting a molding of any medical expenses award downward under Act 6. The court stated that it took this approach based upon the Superior Court’s decision in the case of Pittsburgh Neurosurgery Associates v. Danner, 733 A.2d 1279, 1285 (Pa. Super. 1999), which allowed for medical bills to be presented at trial in full, subject to potentially being molded in a post-trial proceeding.

In the Yurek case, the court emphasized that, during trial, the treating doctor from Florida testified that he was not licensed in Pennsylvania and that he did not perform any medical work in Pennsylvania.

There was testimony that there were allegedly no doctors in Pittsburgh who would do the type of cervical spine fusion surgery that the Florida doctor performed on the plaintiff in Florida. The Florida doctor also testified that he charged $120,000 for performing the surgery. An additional $28,000 was charged by the surgical center. As such, the total expenses for the treatment performed in Florida was $148,000.

In his decision, Hertzberg noted that his review of the evidence led him to conclude that, at least $148,000 of the $150,000 award of past medical expenses appeared to be related to the treatment provided by the Florida doctor in Florida.

The judge agreed with the plaintiff’s argument that, because the Florida doctor was not a Pennsylvania licensed provider, the expenses related to the treatment provided by that out-of-state doctor was not subject to reduction under Act 6 of the Motor Vehicle Financial Responsibility Law.

Hertzberg reasoned that the express language of “cost containment” provision in the MVFRL, 75 Pa.C.S.A. Section 1797(a), which is applicable to medical expenses in a motor vehicle accident case, “twice references medical bill amounts ‘applicable in this commonwealth under the Medicare program.’” Hertzberg noted that this language signaled to him that the statute’s application was limited to only apply to Pennsylvania licensed providers.

In so ruling, Hertzberg also reviewed a regulation regarding the act that was issued by the insurance department. Those regulations, found at 31 Pa. Code Section 69.11 provide, in pertinent part, that the cost containment or payment limitation provisions apply to care rendered by Pennsylvania licensed providers. As such, Hertzberg used this additional analysis to find that Act 6 reductions did not apply to the care rendered by the doctor at issue in this case where the doctor at issue was not a Pennsylvania licensed provider, where the treatment did not take place in Pennsylvania, and where the treatment rendered was not available in Pennsylvania.

Based on the above limited case law, it appears that an out-of-state plaintiff injured in a Pennsylvania accident but treated by out-of-state doctors is not subject to Pennsylvania’s prohibition against the recovery of past medical expenses in a motor vehicle accident lawsuit. However, where the plaintiff is a Pennsylvania resident, at least one trial judge has ruled that Pennsylvania law applies as does the prohibition.

On the issue of whether medical expenses charged by an out-of-state doctor for out-of-state treatment must be reduced under Pennsylvania’s Act 6 provisions, at least one trial court judge has ruled that such expenses do not have to be reduced.

Until appellate guidance is provided it appears that the trial court judges and the bar will have to continue to find their way by reviewing the above cases as a starting point in the continuing debate and analysis of these types of issues.

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.


Reprinted with permission from the July 26, 2024 edition of the Pennsylvania Law Weekly (c) 2024 ALM Global Properties, LLC.  All rights reserved.  Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

$892.50 Ruled a Reasonable Hourly Rate For an Attorney With More than 25 Years Experience

In the case of Donofrio v. IKEA, No. 2:19-CV-01286-AB (E.D. Pa. July 22, 2024 Brody, J.), the court ordered a Defendant to pay on a sanctions motion filed over allegations of spoliation of evidence due to the Defendant’s failure to implement litigation holds to preserve emails and other documentation pertinent to the case.

In this decision, the court awarded $566,296.89 in fees against IKEA for the alleged spoliation of evidence.

According to the Opinion, various Plaintiff’s attorneys representing parties in the case had requested sanctions at an hourly rate of $960.00 per hour for one (1) attorney, $900.00 per hour for another attorney, and $860.00 per hour for another attorney.

IKEA had requested the court to set the hourly rate at no more than $715.00 per hour for the Plaintiff’s attorneys.

For support of its attorney’s fee award, this court cited to the U.S. Court of Appeals for the Third Circuit’s Endorsement of the Fee Schedule promulgated by Community Legal Services of Philadelphia. According to a 2023 Fee Schedule under that promulgation, an hourly rate of $735-$850 was set for attorneys with more than 25 years of experience. For attorneys with experience between 21 and 25 years, the schedule listed a range of $630-$715 per hour. 

In its decision in this case, the court adjusted these numbers upwards by 5% to account for inflation which resulted in hour rates of $771.75 and $892.50 for attorneys with 25 years or more of experience, and $661.50-$750.75 for attorneys with 21-25 years of experience.

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


Source: Article – “Pa. Federal Judge Orders Ogletree Client IKEA To Pay Over $560K For Spoliation Of Evidence.” By Riley Brennan. Pennsylvania Law Weekly (July 24, 2024).

$725 Per Hour Ruled A Reasonable Hourly Rate for Attorney with 30 Years of Experience

In the case of Wexler v. Hawkins, No. 2:19-CV-05760-CMR (E.D. Pa. July 25, 2024 Rufe, J.), a federal district court judge ruled that a solo practitioner’s hourly rate of $725.00 per hour for legal work was reasonable in a case arising out of claims of malicious prosecution allegations against two (2) Philadelphia police officers.

After a successful result at trial, the Plaintiff’s attorney filed a Motion for Attorney’s Fees and Costs. The fees requested equated to $725.00 per hour for this Plaintiff’s attorney who had a background of having practiced for nearly thirty (30) years.

The defense raised objections to the hours reported by the Plaintiff’s attorney. The court largely disagreed with the defense’s objections and only reduced the request for attorney’s fees a bit.

On one of the objections, the court found that the Plaintiff’s attorney’s recording of a total of 16.5 hours working on a twenty-seven (27) page Complaint in which ten (10) federal and state civil causes of actions were asserted, which included legal research, meetings with client and review of other documents was not unreasonable or excessive.

With regards to the objection by the defense that the Plaintiff’s attorney claimed fourteen (14) hours of work preparing the Petition for Attorney’s Fees, the court reduced those hours by 50% to seven (7) hours.

According to the Opinion, the Plaintiff’s attorney’s paralegal was also awarded a total of $15,437.50 in fees, for 123.5 hours at an hourly rate of $125.00.

In so ruling on these attorney's fees and paralegal fees, the court referenced the fee schedule promulgated by Community Legal Services of Philadelphia.

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


Source: Article – “Judge Awards Philadelphia Attorney $263,356.25 In Fees at $725.00 An Hour, Reduces Total Award for Erroneous Entries” By Riley Brennan. Pennsylvania Law Weekly (July 29, 2024).

Source of above image:  Photo by Katrin Bolovtsova on www.pexels.com.

Regular Use Exclusion is Alive and Well in Pennsylvania

The Regular Use Exclusion, found in UM/UIM insurance policies, is alive and well in Pennsylvania.

This exclusion allows an automobile insurance carrier to deny coverage where an insured is driving a vehicle that is regularly available for the use of the insured but which is not covered by that insurance company but some other carrier.  

In the case of Jones v. Erie Insurance Exchange, No. 690 WDA 2020 (Pa. Super. July 3, 2024 Stabile, J., Murray, J. and McLaughlin, J.) (Op. by Murray, J.), the Pennsylvania Superior Court addressed the validity of the regular use exclusion in a UIM policy after the case was remanded back down the appellate ladder for further review of the case in light of the Pennsylvania Supreme Court decisions in the case Rush v. Erie Insurance Exchange, 308 A.3d 780 (Pa. 2024).

In the Rush decision, the Pennsylvania Supreme Court upheld the validity of the regular use exclusion.

Here in this Jones decision, the Superior Court ruled that the new precedent upholding the validity of the regular use exclusion in UIM policies supported the trial court’s judgment in favor of the carrier in this case which involved an accident where the insured was injured while operating a regularly used, employer/owned work vehicle. As such, the judgment of the trial court in favor of the carrier was affirmed.

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


Source: “Legal Intelligencer State Appellate Case Alert” Law.com (July 23, 2024).

Court Reaffirms Rule That Case Cannot Proceed Against a Deceased Defendant

In the case of Carter v. Marchisotto, No. GD 21-844 (C.P. Alleg. Co. May 13, 2024 Hertzberg, J.), the court, in a Rule 1925 Opinion, justified its decision in granting summary judgment in a trip and fall case.

After initially noting that the court’s entry of summary judgment against one of the Defendants did not result in a final Order disposing of all claims and that, therefore, the Plaintiff’s appeal should be quashed, the court still addressed certain other issues raised in the event the Superior Court went on to consider the merits of the appeal.

Of note, the court noted that the Plaintiffs had listed an administratrix of the estate of a deceased Defendant as a party Defendant. However, the defense in the case had shown that no such administratrix had been formally appointed by the court.

Accordingly, the court noted that it had properly dismissed that Defendant, in part, under Pennsylvania law that holds that no dead person can be a party to a lawsuit because a court does not have any jurisdiction until a personal representative is formally substituted in the place of the dead party.

The court noted that it was improper for the Plaintiff to file a case directly against the heirs of the deceased Defendant and avoid the proper procedures for the appointment of a personal representative of the estate and, thereafter, substituting the estate of the deceased Defendant as the party Defendant.

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


Source: The Legal Intelligencer Common Pleas Case Alert - www.Law.com (July 4, 2024).

Petition to Open Default Denied Where Defendant Failed To Present Valid Excuse For Failure to Answer

In the case of PPL Electric Utilities Corp. v. EAN Holdings, LLC, No. 3806-CV-2023 (C.P. Monroe Co. April 30, 2024 Zulick, J.), the court denied a Defendant’s Petition to Open a Default Judgment.

The court denied the motion after holding that the Defendant failed to establish excusable negligence for its failure to timely answer the Plaintiff’s Complaint where the Defendant claimed only that it suffered difficulties in forwarding the service of process that was completed to Pennsylvania counsel after the Defendant was served out of state.

The court additionally rejected the Defendant’s challenge regarding the 10-Day Notice that the Plaintiff sent. The Defendant complained that no 10-Day Notice was filed of record with the court before the Plaintiff had the Praecipe for Default entered on the docket.

Judge Arthur L. Zulick
Monroe County 

However, Judge Zulick noted that Pa. R.C.P. 237.1 did not require Plaintiff to file anything of record when it sent the 10-Day Notice of Intent to Enter a Default Judgment. Rather, the Rule only required the Plaintiff to certify within the Praecipe to enter a default judgment that a 10-Day Notice had been sent.  The record before the Court confirmed that the Plantiff had followed this required procedure.

Based on these reasons, the court denied the Defendant’s Petition to Open a Default Judgment.

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

Source: The Legal Intelligencer Court of Common Pleas Case Alert at www.law.com
(July 10, 2024).