Wednesday, October 30, 2024

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.



Tuesday, October 29, 2024

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.
  

Monday, October 28, 2024

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).

Thursday, October 24, 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.

Wednesday, October 23, 2024

Need CLE Credits? Presenting At an Upcoming Seminar With 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.




Superior Court Addresses Venue Issues in a Case Originally Filed in Philadelphia


In a non-precedential decision in the case of Troseth v. Carson Helicopters Holdings Co., No. 249 EDA 2022 (Pa. Super. Oct. 8, 2024 Bowes, J., Olson, J., McLaughlin, J.) (Op. by Bowes, J.) (McLaughlin, J., dissenting), the Pennsylvania Superior Court reversed a trial court’s overruling of Preliminary Objections asserted by a Defendant on the issue of proper venue in Philadelphia County.

The court ruled that other Defendants having a contractual relationship with a Philadelphia-based company, largely prior to the filing of the subject lawsuit, was insufficient to support a finding of proper venue in Philadelphia County. The court emphasized that the question of proper venue is to be determined based upon the facts at issue at the point the lawsuit is filed.

The Pennsylvania Superior Court otherwise ruled that incidental dealings with a company, not involving a Defendant’s core business purposes, are insufficient to establish venue.

The court more specifically indicated that doing business with a Philadelphia County company does not amount to doing business in Philadelphia County if the obtained goods, services, or personnel are utilized elsewhere to further the Defendant’s business activities.

The court additionally ruled that venue as to a subsidiary does to automatically create proper venue relative to a parent corporation.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.  The Dissenting Opinion can be viewed HERE.


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

Please Consider Supporting a Great Cause


 

Superior Court Finds That Jury Should Have Been Allowed To Consider Comparative Negligence Where Evidence Plaintiff's Alleged Excessive Speed Presented



In the case of Dailey v. Smith, No. 2024 Pa. Super. 235 (Pa. Super. Oct. 10, 2024 Collins, J., Stabile, J., and McLaughlin, J.) (Op. by Collins, J.) (McLaughlin, J. dissenting), the Superior Court reversed a trial court’s decision to remove comparative negligence issues from the jury's consideration in a motor vehicle accident case.

According to the Superior Court’s Opinion, in the trial below, Plaintiff admitted to speeding at the time of the accident.

As such, the appellate court found that the trial court had abused its discretion in removing the issue of Plaintiff’s comparative negligence from the jury’s consideration. The Superior Court noted that where there is evidence in a case that a Plaintiff was negligent and that the Plaintiff’s negligence may have caused the Plaintiff’s alleged injuries, such issues must be allowed to proceed to a jury.

The appellate court noted that speeding is not just mere negligence, but could be negligence per se.

The Superior Court additionally confirmed that causation and routine automobile accident negligence cases do not require expert testimony on the liability issues. In this case, neither side had an expert on the liability issues presented.

The appellate court noted that a vehicle's speed could have affected both the time to avoid a collision and the forces involved in the collision.

The Superior Court noted that the jury in this case was incorrectly prevented from considering the causal effect of the Plaintiff’s speed. The appellate court noted that this evidence was not only important to the liability issues but also was intertwined with the damages issues as the evidence implicates whether, if at all, the speed of the Plaintiff’s vehicle contributed to the Plaintiff’s own injuries.

In the Dissenting Opinion, Judge McLaughlin asserted that the Plaintiff's speed should not have been considered because, even if the Plaintiff was speeding, although this does amount to negligence per se, there was no evidence to conclude that the accident would not have happened if the Plaintiff was not speeding and/or that there was no evidence that, if the Plaintiff was traveling slower, the Plaintiff's injuries would have been less.   

Anyone wishing to review a copy of this decision may click this LINK.  The Dissenting Opinion can be viewed HERE.

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

Monday, October 21, 2024

Covid-19 Related Claims Against College Allowed to Proceed


In the case of Dantone v. Kings College, No. 3:23-CV-1365 (M.D. Pa. Aug. 29, 2024 Munley, J.), the court ruled that Pennsylvania’s prohibition against claims for educational malpractice did not bar the Plaintiff’s COVID-related claims against the Defendant university for converting from in-person to on-line education to the alleged detriment to the Plaintiff.

The court noted that the Plaintiff did not claim that the education was inadequate, but that an in-person college experience was essential to the enrollment bargain.

The court also allowed the Plaintiff to plead unjust enrichment claims at this initial stage of the litigation even though Pennsylvania precludes unjust enrichment claims between parties whose relationship is governed by either an express or implied contract.  The court noted that, under the Rules of Civil Procedure, a Plaintiff is entitled to plead in the alternative.

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 Supreme Court Reverses and Rules in Favor of Insurance Carrier in Covid-19 Business Interruption Coverage Case


In the case of Ungarean v. CNA, No. 12 WAP 2023 (Pa. Sept. 26, 2024) (Op. by Brobson, J.), the court addressed issues regarding business interruption coverage in the context of the COVID-19 pandemic.

This case involved a class action that was led by a dental practice which had purchased a commercial property insurance policy from an insurance company, which policy was intended to cover business-related losses.

After the court mandated closures as a result of the COVID-19 pandemic, the insured filed a claim under the policy, which was denied by the insurance company on the grounds that there was no physical damage to the property.

The trial court had granted summary judgment in favor of the insureds. The trial court had interpreted the policy language to include loss of use of the property as a form of “direct physical loss.”

That trial court decision was affirmed by the Superior Court who also found the policy language at issue was ambiguous and should be construed in favor of the insured.

However, the Pennsylvania Supreme Court reversed the Superior Court’s decision.

The Pennsylvania Supreme Court held that the policy language was unambiguous and required a physical alteration to the insured’s property for the coverage to apply.

The court ruled that the economic losses sustained by the insured due to the government shutdown did not meet this requirement.

As such, the Supreme Court ruled that the insured was not entitled to coverage under the policy. The case was remanded to the Superior Court with instructions for summary judgment to be entered in favor of the insurance company.

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


I send thanks to Attorney Scott B. Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention.

Thursday, October 17, 2024

Federal District Court Confirms that Fraudulent Misjoinder Doctrine Not Adopted in Third Circuit Relative to Remand Analysis


In the case of Ashworth v. Eurofins Donor & Product Testing, Inc., No. 23-1958 (E.D. Pa. Aug. 29, 2024 Schmehl, J.), the court granted a Motion to Remand and denied a Motion to Dismiss. In this case, the Plaintiff brought products liability claims against a diverse product manufacturer Defendant and medical malpractice claims against a non-diverse implantation surgeon.

The court ruled that remand was appropriate because the doctrine of fraudulent misjoinder is not recognized in the Third Circuit Court. The court noted that the elements of the doctrine were too unsettled to be adopted in this federal court.

As such, the Court ultimately ruled that a remand of this matter to the state court was proper.  

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.

Court Dismisses Claims of Negligent Hiring and Supervision, as well as Negligent Entrustment, Against Lyft


In the case of Henry v. Marcelin, No. 24-1891 (E.D. Pa. Sept. 25, 2024 Arteaga, J.), a judge in the Eastern District Federal Court of Pennsylvania granted the Defendant rideshare company’s Motion for Partial Judgment on the Pleadings in a personal injury case arising out of a motor vehicle collision.

According to the Opinion, the Plaintiff was a passenger that was involved in a motor vehicle accident that involved a rideshare vehicle.

Among her claims, the Plaintiff alleged that the Defendant, rideshare company (Lyft), was responsible on theories of negligent hiring and negligent entrustment. The Defendant rideshare company sought a partial judgment on the pleadings, arguing that the Plaintiff’s claim alleging negligent hiring, retention, training, and supervision, along with a claim for negligent entrustment, failed to state a claim within relief could be granted.

The court granted the rideshare defendant’s motion after finding that the Plaintiff failed to identify any past misconduct by the driver of the rideshare vehicle that would have put a reasonable employer on notice of an employee’s propensity for dangerous activities. The court also noted that there were no allegations offered by the Plaintiff to support an inference that the Defendant rideshare company knew that its driver was allegedly unqualified.

The court declined to recognize a genuine duty to investigate on the rideshare company’s part.

Accordingly, the court dismissed the Plaintiff’s claims of negligent hiring and related claims. 

The court also dismissed the claims for negligent entrustment. These claims were dismissed without prejudice and with leave granted to the Plaintiff to amend on the chance that the Plaintiff might be able to allege facts sufficient to state a claim upon which relief could be granted.

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


Source “Digest of Recent Opinions.” www.Law.com (Pennsylvania Law Weekly) (Oct. 11, 2024).

Tuesday, October 15, 2024

Judge Mehalchick of Federal Middle District Addresses Definition of Resident Relative


In the case of Barna v. Progressive Ins. Co., No. 3:22-CV-01845-KM (M.D. Pa. Sept. 11, 2024 Mehalchick, J.), the court addressed a summary judgment filed by Defendant, State Farm, in a UIM case.

The Plaintiff claimed that State Farm wrongfully denied underinsured benefits that he was allegedly entitled to under his parents’ insurance policies.

According to the Opinion, the Plaintiff was involved in a motor vehicle accident while driving his father’s vehicle.

Due to the alleged severity of the Plaintiff’s injuries, the Plaintiff alleged that the liability coverage available to the at-fault driver and the coverage available on the vehicle that the Plaintiff was driving were insufficient to cover the Plaintiff’s damages. As such, the Plaintiff was also seeking to recover UIM benefits under policies issued to his stepfather and his mother, all of which policies were issued by State Farm.

A central issue in this case is whether the injured party was a “resident relative” under either policy issued by State Farm to the Plaintiff’s stepfather or his mother.

In her thorough Opinion, Judge Mehalchick reviewed the various definitions of the word “resident.” Judge Mehalchick also referred to Third Circuit precedent in which that court referred to Webster’s New Collegiate Dictionary to define that a person lives in a location as a resident when they occupy a home on a permanent basis.

Judge Mehalchick also noted that the federal courts have held that, if a resident relative moves out of an insured’s home, they lose the residency status, unless they move back to live with the insured under the policy on a full-time basis. 

The court noted that a “resident relative” who moves out of an insured’s home loses resident relative status except in limited circumstances, such as when the person leaves the home to go to school or on an extended vacation. 

After reviewing the record before her relative to the injured party’s association with his parents’ residence, the court found that no reasonable juror could find that the injured party had lived at his stepfather’s and mother’s residence as of the time of the incident. Accordingly, the injured party was found not to be a resident relative under the State Farm policies at issue. As such, State Farm’s Motion for Summary Judgment was granted.

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

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


 

Friday, October 11, 2024

Upcoming Changes to the Pennsylvania Rules of Appellate Procedure




According to content in a recent edition of the Pennsylvania Bulletin, there are some changes to the Pennsylvania Rules of Appellate Procedure set to go into effect in January of 2025.

The Rule changes can be viewed at this LINK.

Federal District Court Addresses Jurisdictional Issues and also References Fair Share Act


In the case of Tanibajeva v. Skytop Lodge Corp., No. 3:23-CV-01846 (M.D. Pa. Sept. 3, 2024 Mehalchick, J.), the court granted in part and denied in part a Motion to Dismiss on jurisdictional issues in a case involving a zipline accident at a resort in the Poconos.

The court noted that the Plaintiff would be allowed to complete discovery in order to determine proper jurisdiction. 

Judge Mehalchick noted that, while a single shipment of a product in Pennsylvania is ordinarily not enough to confer specific personal jurisdiction, discovery in this case might reveal more significant contacts.

The court also noted that stream of commerce is not a valid jurisdictional theory. 

The court otherwise found that the Defendant in this case did not have regular and systemic Pennsylvania business.

However, the court found that the Plaintiff’s position on the jurisdiction issue was not frivolous. Accordingly, as noted, the court allowed for jurisdictional discovery to be completed.

In this Opinion, Judge Mehalchick also addressed the applicability of the Fair Share Act. 

The court noted its assessment that, under recent Pennsylvania case law, the Fair Share Act does not apply unless the Plaintiff’s potential comparative negligence is at issue. Accordingly, the court found that the allegations of joint and several liability by the Plaintiff were proper in this case. Judge Mehalchick also stated that, based upon her review of the Complaint, there did not appear to be a basis for an argument of comparative negligence.

The court also ruled that Pennsylvania law does not recognize a separate cause of action for willful and wanton misconduct or reckless indifference.

Judge Mehalchick also found the Plaintiff’s express warranty claims failed to plead that the Plaintiff purchased any product from the Defendants.  As such, that claim was dismissed.

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


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

Wednesday, October 9, 2024

Philadelphia County Case Transferred To Delaware Under Doctrine of Forum Non Conveniens


In the case of Gravenor-Reutter v. Acme Markets, Inc., June Term, 2023 No. 2390 (C.P. Phila. Co. April 9, 2024 Bright, J.), the court issued a Rule 1925 Opinion to the Superior Court outlining the reasons in support of the trial court’s granting of the Defendant’s Motion to Dismiss this Philadelphia County case based upon the doctrine of forum non conveniens regarding the slip and fall event that occurred at an Acme in the State of Delaware.

The trial court noted that its Order dismissing the matter should be affirmed where the accident at issue occurred in Delaware, where the Defendant had merely minimal contacts in Pennsylvania, and where Delaware was a viable alternative forum for the Plaintiff’s lawsuit.

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


Source: “The Legal Intelligencer Weekly Case Alert” www.Law.com (Aug. 29, 2024).

Tuesday, October 8, 2024

Court Precludes Discovery From Grand Rounds Conference by Peer Review Committee in Med Mal Case


In the case of Houwelingen v. Milton S. Hershey Medical Center, No. 1:22-CV-01388 (M.D. Pa. Aug. 21, 2024 Wilson, J.), the court denied a Motion to Compel in the medical malpractice case.

At issue was the discoverability of a PowerPoint presentation from a grand round conference.

According to the Opinion, a grand round conference involves patient-specific presentations at a medical facility which include the retrospective review of the care those patients received. Grand round presentations are used to evaluate the quality and efficiency of the healthcare those patients received and also review how to improve such treatment.

The court ruled, after an in camera review, that the Defendant hospital’s grand rounds PowerPoint presentation was protected from discovery under Pennsylvania Peer Review Protection Act.

In so ruling, the court noted that protected peer review committees need not specifically have the words “peer review” in their title, nor must they limit themselves to solely conducting peer review functions, in order to secure the protections of the act.

The court noted that the patient discussion portions of the grand rounds presentations involved professional healthcare providers assessing and critiquing the care provided by other such professionals.

The court also noted that the fact that the participants in the meeting received continuing medical education credits did not preclude a finding that the information sought in discovery was afforded the protection of Peer Review Act.

Anyone wishing to review this decision may click this LINK.

Monday, October 7, 2024

Trial Court Refuses To Allow Defense Counsel to Attend Neuropsychological IME


In the case of Healey v. Scranton Hospital Company, LLC, No. 2023-CV-1793 (C.P. Lacka. Co. Oct. 2, 2024 Nealon, J.), Judge Nealon ruled, in a medical malpractice case that a defense attorney is not permitted to attend a neuropsychological examination that the defense had scheduled for a Plaintiff.

The court found that Pa. R.C.P. 4010, regarding physical and mental examinations in civil litigation matters, only grants the Plaintiff’s counsel the right to attend such an examination of the Plaintiff.

Judge Nealon noted that, “if the Supreme Court of Pennsylvania deemed it appropriate or necessary for defense counsel to have a corresponding right to attend a Rule 4010 examination, it could have stated so” in the Rule.

Given that Rule 4010 does not reference any right for a defense counsel to attend a medical examination set up for litigation purposes, Judge Nealon denied the defense motion in which the defense sought permission to attend the examination.

In his Opinion, Judge Nealon also cautioned that it would be inappropriate for a plaintiff's attorney interfere with the examination or obstruct the doctor's interview of the plaintiff, sanctions could be warranted.  The Judge also cautioned that, if the plaintiff's attorney acted inappropriately at the examination, the plaintiff's attorney even ran the risk of being disqualified from continuing as counsel for the plaintiff based upon the advocate-witness rule in Rule 3.7 of the Rules of Professional Conduct.

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

I send thanks to Attorney Bruce Zero of the Scranton, PA law firm of Powell, Zero & Mundy for bringing this case to my attention.

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

 


Friday, October 4, 2024

LINK For the Third Circuit's Decision on Household Exclusion in Mid-Century Ins. Co. v. Werley

 One of yesterday's Tort Talk blog posts was on the case of Mid-Century Ins. Co. v. Werley, No. 23-1822 (3d. Cir. Sept. 5, 2024 Krause, J., Chung, J., and Randell J.) (Op. by Rendell, J.), the Third Circuit Court of Appeals upheld the application of a household exclusion in a UIM case.  

The Link was not set up on that post -- the Link has been corrected below.  Judge Marjorie Rendell's name was incorrectly spelled and that has been corrected as well.

Here is the LINK to that decision.

Apologies for any confusion or consternation caused by these errors.

Excellent Overview on the Law on the Validity of Household Exclusion Provided by Third Circuit


In the case of Mid-Century Ins. Co. v. Werley, No. 23-1822 (3d. Cir. Sept. 5, 2024 Krause, J., Chung, J., and Randell J.) (Op. by Rendell, J.), the Third Circuit Court of Appeals upheld the application of a household exclusion in a UIM case.

In this Opinion, Judge Marjorie Rendell provides a thorough and excellent overview of the applicable law under Pennsylvania’s Motor Vehicle Financial Responsibility Law with regards to the availability of underinsured motor vehicle coverage and the process for rejecting the same and with regards to the stacking of such coverage.

In this case, a 15 year old Plaintiff, who did not have a driver’s license, was operating

 his family’s uninsured dirt bike offroad with several friends on private property. Another driver struck the Plaintiff while that other driver was driving a Jeep.

The driver of the Jeep paid out to the injured party the bodily injury limits available under that driver’s liability policy. The Plaintiff then sought UIM coverage under his parent’s own household automobile insurance policies. The family had two (2) such policies.

The court noted that intra-policy stacking had been validly rejected by the family. However, it was indicated that the family could not waive inter-policy stacking because one of the policies was a multi-vehicle policy that insured multiple vehicles.

The multi-vehicle policy contained a household vehicle exclusion. Under the family’s second household automobile insurance policy there was also a household exclusion but the carrier had determined that, under the separate and different language of that exclusion, that exclusion did not serve to exclude coverage.

As such, the carrier paid out UIM benefits under one of its policies but denied coverage under the second policy by virtue of the household exclusion.

In its Opinion, the Third Circuit provided a thorough overview of the recent Pennsylvania jurisprudence on the law of the validity of the household exclusion, including such cases as the Gallagher and Donovan cases in which there was a discussion regarding household exclusions, at times, acting as de facto stacking waivers and violations of 75 Pa. C.S.A. §1738.

The court noted that a crucial distinguishable fact involved in the case before it, as compared to the facts in the Gallagher and Donovan cases, was that, in the case before it, the injured party was driving an uninsured dirt bike whereas in the Gallagher and Donovan cases, the injured parties were operating insured motorcycles.

The Third Circuit additionally noted that the Pennsylvania Supreme Court has cautioned that the Gallagher case “should be construed narrowly.” [citations omitted] See Op. at 15. The Third Circuit predicted that the Pennsylvania Supreme Court would conclude that the collective logic of the previous cases of Gallagher, Donovan, Eichelman, and Mione is that a household vehicle exclusion is only valid if, (1) a policy insureds the vehicle involved in the accident, (2) that policy provides UIM coverage on that vehicle, and (3) the household vehicle exclusion of a second policy sought to stack on top of the first policy would exclude UIM coverage for that vehicle. See Op. at 20.

Since the first condition was not satisfied in this case, the court found that the household vehicle exclusion was valid and enforceable.

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


I send thanks to Attorney Candace Edgar of the Camphill, PA office of Marshall Dennehey for bringing this case to my attention.

Carrier Faulted For Improperly Denying Stacked UIM Coverage


In the case of McGuire v. Nationwide Affinity Ins. Co., No. 2:23-CV-1347-NR (W.D. Pa. Sept. 11, 2024 Ranjam, J.), the Western District Court addressed stacking issues relative to a UIM claim.

The parties agreed that the insured on the policy, who was the father of the injured party, had waived stacking coverage on that policy.

However, the injured party argued that the waiver at issue had applied to an earlier policy, and not the policy that he sought coverage under for the subject accident.

Nationwide disagreed and asserted that the operative policy was merely a “renewal” of the prior policy to which the stacking waiver already applied.

After comparing the two (2) policies, the court concluded that the operative policy of insurance was not a “renewal” policy.  Accordingly, the court granted Plaintiff’s Motion for Summary Judgment and held that Nationwide had breached its contract by denying stacking based on his father’s prior waiver.

Given that the Plaintiff had effectively withdrawn his bad faith claim, the court granted Nationwide’s Motion relative to that claim only.

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

I send thanks to Attorney Anthony Gianetti of the Pittsburgh office of Swartz Culleton, P.C., for bringing this case to my attention.

Thursday, October 3, 2024

Summary Judgment Granted Based on Open and Obvious Doctrine Regarding Accident Involving Pothole


In the case of Holmes v. 746 Union Development, LLC, No. 2021-C-1461 (C.P. Leh. Co. Sept. _ 2023 Cohen, J.), the various Defendants filed a Motion for Summary Judgment after the Plaintiff fell from her electronic personal mobility device/scooter when she hit a pothole while attempting to cross a street in Allentown.

The court granted the Defendant’s Motion filed by the Defendant City.  In his decision in this matter
Judge Zachary J. Cohen
Lehigh County



Judge Zachary J. Cohen of the Lehigh County Court of Common Pleas held that the Plaintiff could not recover as a matter of law where she admitted in her deposition testimony that she was not watching where she was going as she attempted to cross the street in her mobility scooter.

The court additionally noted that the record revealed that, if the Plaintiff had been watching where she was going, she would have seen and avoided the obvious pothole in the road.

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


Source: “The Legal Intelligencer Weekly Case Alert” www.Law.com (Aug. 29, 2024).

Summary Judgment Affirmed in Black Ice Case Where Plaintiff Could Not Confirm That She Was Caused To Fall By Ice



In a decision marked "Non-precedential" [Why mark any decision non-precedential?!] in the case of Bywater v. Conemugh Mem. Med. Ctr., No. 1072 WDA 2023 (Pa. Super. Aug. 5, 2024 Kunselman, J., Murray, J., and McLaughlin, J.) (Op. by Kunselman, J.), the Pennsylvania Superior Court addressed the liability of a Defendant landowner in a black ice case.

According to the Opinion, at the time of the incident, in a medical center’s parking lot, the Plaintiff slipped and fell against her car when she stepped out of her vehicle. The Plaintiff then perceived that her clothes were wet. However, at her deposition, she did not testify that she saw or felt any ice in the area where she allegedly slipped.

According to the Opinion, no precipitation had recently fallen. There was snow on the ground and the sidewalks were salted. Temperatures had remained below freezing during the week leading up to the incident.

The reproduced record before the Court revealed that, at her deposition, the Plaintiff stated that she looked around and “there was nothing there.” As to why she believed that ice was involved, the Plaintiff stated that, “...[b]ecause you can’t see black ice. Why else would I fall?”

The Superior Court affirmed the entry of summary judgment in favor of the Defendant landowner given that the case established that the Plaintiff only assumed that she slipped on ice, which she never actually saw or detected.

The appellate court also noted that there was no other witness to confirm whether or not any black ice was involved in the incident.

The Pennsylvania Superior Court in affirming summary judgment noted that, “[s]imply stated if [the Plaintiff] could not see the ice that she allegedly fell upon, neither could anyone working for the medical center. If the medical center’s staff could not see the ice, then the medical center neither knew nor should have known that a dangerous, icy condition existed in its parking lot on the morning [the Plaintiff’s] fall.”

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

I send thanks to Attorney Walt McClatchy of McClatchy Law in Philadelphia for bringing this case to my attention.

Source of image:  Photo by Egor Kamelev on www.pexels.com.

Wednesday, October 2, 2024

Medical Malpractice Plaintiff Must Show Systemic Negligence to Support a Corporate Negligence Claim in a Med Mal Case


In the non-precedential decision in the case of Wandell v. Robert Packer Hospital, No. 1532 MDA 2023 (Pa. Super. Aug. 7, 2024 Stevens, P.J.E., Olson, J., and Kunselman, J.)(Mem. Op. by Stevens, P.J.E.), the court affirmed the entry of summary judgment in favor of a Defendant hospital in a medical malpractice case.

The Superior Court noted that hospital corporate negligence is limited to instances in which a Plaintiff demonstrates systemic negligence.

The court additionally noted that, except in obvious cases that are within a layperson’s general understanding, a Plaintiff must present expert testimony establishing the generally accepted standard of care in a medical malpractice case along with the healthcare provider’s breach of duty.

More specifically with respect to this case, the court agreed with the trial court that the fact that a nurse left a room during the course of treatment did not automatically establish a hospital’s negligence. The court noted that medical issues regarding the standard of care and whether the nursing staff deviated from the standard of care required expert reports. 

In this case, the court noted that the Plaintiff had failed to offer any expert testimony relative to the applicable standard of care. As such, the entry of summary judgment by the trial court was affirmed.

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

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

Plaintiff's Med Mal Experts Permitted to Testify But Scope of Testimony Somewhat Curtailed


In the case of Rotella v. Community Medical Center, No. 2022-CV-3943 (C.P. Lacka. Co. Sept. 5, 2024 Nealon, J.), the court addressed motions seeking to preclude defense expert witnesses in a medical malpractice case.

According to the Opinion, the Plaintiffs filed a Motion In Limine seeking to preclude the testimony of various expert witnesses for the defense on several grounds.

First, the Plaintiff asserted that the experts do not satisfy the competency requirements as set forth in Section 512 of the Medical Care Availability and Reduction of Error (MCARE) Act, 40 Pa. C.S.A. §1303.512.

The Plaintiffs additionally asserted that the testimony of the multiple defense experts concerning causation was needlessly cumulative.

Third, the Plaintiff asserted that two (2) of the experts discussed irrelevant and unfairly prejudicial information in their Pre-Trial Reports regarding unrelated medical conditions.

After his review of the record before him, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas ruled that, based upon the expert reports and the CVs submitted, the defense experts at issue were found to possess the necessary qualifications to address the medical causation issues.

Judge Nealon additionally found that the opinions of the various defense experts were from different medical specialties and distinct clinical perspectives and, as such, constituted corroborative, rather than needlessly cumulative evidence.

As to the third issue, Judge Nealon granted the Plaintiff’s Motion In Limine and found that, since the infectious disease care provided to the male Plaintiff was not a subject of the Plaintiffs’ negligence claims, the defense infectious disease expert would be precluded from offering opinions that the infectious disease treatment in the matter complied with the standard of care.

Judge Nealon additionally ruled that, given that the COVID-19 pandemic did not affect the care involved in this case or otherwise impact the applicable standard of care, the defense corporate liability expert would be barred from mentioning “hospitals across the country were be inundated with patients who were victims of the COVID pandemic” at the time of the male Plaintiff’s hospitalization.

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

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