Thursday, January 30, 2025

PLEASE CONSIDER VOLUNTEERING TO SERVE AS A JUROR IN NEXT WEEK'S FIRST ROUND IN SCRANTON


 

Summary Judgment Entered for UIM Carrier Where Plaintiff Did Not Fall Under Definition of a "Covered" Person


In the non-precedential decision in the case of Miller v. USAA General Ind. Co., No. 23-1934 (3d Cir. Jan. 2025 Chagares, C.J., Chung, J., and Fisher, J.) (Op. by Fisher, J.), the court affirmed summary judgment that had been granted by Judge Christopher C. Conner of the Federal Middle District Court in favor of the carrier in a UIM case.

According to the Opinion, a UIM Plaintiff sought coverage under a policy that was issued to the grandmother of the Claimant’s daughter. Both the Claimant and the daughter were living with the grandmother at the time of the accident.

The grandmother was the only named insured on the policy. The Claimant and the grandmother were not related by blood, marriage, or adoption.

The Claimant argued that her daughter was a named insured because she was listed as an “operator” on the declarations page for the applicable policy and that, therefore, the Claimant also qualified as an insured under that policy.

The Claimant additionally argued that the limitation of UIM coverage to the named insured and family members of the named insured, as defined by the policy, violated the Pennsylvania Motor Vehicle Financial Responsibility Law and the related stacking provisions. In this case, the Claimant invoked the case of Gallagher v. Geico and its precedent.

The Third Circuit Court of Appeals dismissed the Claimant’s arguments. The Third Circuit confirmed that the Claimant did not qualify as an insured under the policy and that, therefore, no UIM benefits were owed to the Claimant.

The Court noted that the issue in this case was not whether the named insured had waived UIM benefits.  Rather, the issue, and the finding, was that the Plaintiff was simply not a "covered" person under the terms of the policy.   

Moreover, the court found that, since the Claimant was not even an insured under the policy, no duty of good faith was owed to her by the carrier.

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


I send thanks to Attorney Christopher W. Woodward of the Camphill office of Marshall Dennehey for bringing this case to my attention.

Western District Federal Court of Pennsylvania Addresses Products Liability Claims In a Prescription Medical Device Litigation


In the case of Blair v. Abbvie, Inc., No. 2:23-CV-1871 (W.D. Pa. Jan. 9, 2025 Ranjan, J.), the court granted a Motion to Dismiss in a prescription medical device litigation.

In this decision, the Western Federal District Court confirmed that Pennsylvania’s across-the-board application of the Restatement §402A, comment k, as precluding strict liability design defect claims, but not strict liability manufacturing defect claims.

The court also ruled that, similarly, given that the elements of implied warranty claims are identical to strict liability claims, the Plaintiff’s implied warranty claims were dismissed.

The court also ruled in this case that the manufacturing defect claims asseted by the Plaintiff were inadequately pled because the claims did not reveal either any specific problem with the device or how the device allegedly failed. The court noted that the availability of a malfunction theory manufacturing defect claim does not exclude excuse failure to plead the circumstances of the alleged malfunction.

The court also ruled that the negligent design and warning claims were inadequately pled because the Plaintiff did not identify the design defect, anything about the manufacturing process, or what information should have been given to his medical providers.

Based on these issues, the trial court granted the Defendant’s Motion to Dismiss.

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, January 29, 2025

Plaintiff's Claims For Tortious Interference with a Dead Body Kept Alive


In the case of McGee v. Bowser, No. 838 EDA 2023 (Pa. Super. Dec. 30, 2024 Olson, J., Sullivan, J., and Bender, J.)(Op. by Olson, J.), the Superior Court affirmed in part and reversed in part a trial court’s sustaining of Preliminary Objections in a case involving a Plaintiff’s decedent being moved from his original gravesite without consent.

According to the Opinion, the Plaintiff pled that the Defendant’s conspired to move the decedent from his original gravesite without consent or notice. The Plaintiff also alleged that the disinterment permit had been improperly granted.

Reviewing the claims before it, the appellate court ruled that the Plaintiff had indeed stated a valid claim for tortious interference with a dead body under the elements noted in the Restatement §868.

However, the court found that the Plaintiff’s intentional infliction of emotional distress claim failed. The court noted that such a claim requires that a Plaintiff be present when the tort occurred.

However, the appellate court did allow the Plaintiff’s negligent infliction of emotional distress claim brought against the cemetery for breach of fiduciary duty to proceed given that that claim did not require a contemporaneous observation.

Relative to a civil conspiracy claim asserted by the Plaintiff, the court confirmed that a civil conspiracy claim is a derivative claim and that, given that some of the Plaintiff’s other substantive claims were reinstated, the civil conspiracy claim would likewise be allowed to proceed.

On the issue of the Plaintiff’s claim for punitive damages, the appellate court noted that such damages are permitted on a lesser standard of outrageousness in cases involving the mistreatment of corpses.

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.


Source of Image:  Photo by Scott Rodgerson on www.unsplash.com.

Tuesday, January 28, 2025

Eastern Federal District Court Judge Issues Rule 11 Sanctions Against Plaintiff's Counsel

 In the case of Shelton v. Chaudhry, No. 24-5657 (E.D. Pa. Jan. 27, 2025 McHugh, J.), Eastern Federal District Court Judge Gerald A. McHugh ripped a scathing Opinion meting out Rule 11 sanctions against a Plaintiff's counsel for repeated violations.

According to the decision, in this case arisining out of a motor vehicle accident, the Court faulted the Plaintiff's attorney for repeatedly filing a federal court Complaint rooted in diversity jurisdiction while, at the same time, pleading facts that established that such jurisdiction did not exist.

In his decision, Judge Hughes provides a thorough review of the current status of federal law in the context mandates imposed on attorneys under Rule 11 as well as when sanctions are warranted under that Rule.

In the end, the Court's sanctions imposed included a reprimand addressed to Plaintiff's counsel, the imposition of a $7,500 fine on the attorney, and the issuance of a directive that the attorney circulate the Court's Opinion to the other members of the Plaintiff's law firm at issue.

Anyone wishing to review this decision may click this LINK.

MANY MOCK TRIAL JURORS NEEDED FOR FIRST ROUNDS -- HOPING YOU MIGHT PLEASE VOLUNTEER

 


Monday, January 27, 2025

Superior Court Affirms Entry of Defense Verdict Even Though Defendant's Answer to Complaint Was Stricken Prior to Trial


In the case of Derbyshire v. Jefferson Frankford Hospital, No. 1409 EDA 2023 (Pa. Super. Dec. 20, 2024 Olson, J., Stabile, J. and Colins, J.) (Op. by Stabile, J.), the Superior Court found that a trial court judge did not commit any error in post-trial proceedings by denying a Plaintiff’s Motion for a New Trial limited to the issue of damages.

This matter arose out of a slip and fall event.

According to the Opinion, prior to the trial in the underlying matter, a motions court judge had stricken the Defendant’s Answer to the Complaint with prejudice due to untimeliness under Pa. R.C.P. 1029(b).

Later, another judge who presided over the trial, refused the Plaintiff’s request to direct the jury to find in the Plaintiff’s favor on the issues of negligence and causation and, instead, allowed these issues to go to the jury.

The jury then returned a verdict in favor of the Defendant on the issue of causation and awarded zero damages.

The Superior Court held that, while the Defendant’s failure to answer the Complaint resulted in a deemed admission of the facts alleged in the Plaintiff’s Complaint, at trial, the Plaintiff still had a burden to prove a legal causal connection between the Defendant’s alleged negligent conduct and the Plaintiff’s alleged damages. In its ruling, the Superior Court noted that, since the jury found the Defendant negligent, the Plaintiff suffered no prejudice from the trial court’s refusal to deem that issue admitted. The Superior Court therefore focused its attention on the issue of causation.

In ruling in the manner it did, the Superior Court found a 1984 decision from the Supreme Court of Texas to be persuasive. That court in Texas had concluded that a plaintiff who obtains a default judgment in a personal injury matter must still prove damages apart from the deemed admission of liability. 

Here, in this Derbyshire case, the court found that the striking of the Defendant’s Answer and New Matter resulted in a deemed admission of all facts but only an admission of “liability” by the Defendant. 

The Superior Court ruled that the Plaintiff still had to proceed to trial on the issue of damages and, in this regard, the Plaintiff had a burden to establish that the Defendant’s conduct caused the Plaintiff’s damages. 

As noted, in this case, the jury was not convinced that the Plaintiff’s alleged damages were related to the Defendant’s negligent conduct.

The Superior Court ruled that, based upon a review of the evidence in the record, it was within the jury’s prerogative to award zero damages.

Accordingly, the Superior Court ultimately ruled that the trial court did not err in denying the Plaintiff’s Post-Trial Motions seeking a new trial on damages.

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

Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (Jan. 14, 2025).

GROSS NEGLIGENCE: Court Denies Summary Judgment in Premises Case Involving Slip and Fall on Vomit


In the case of Johnson v. Penney, No. 2:22-CV-03665-RBS (E.D. Pa. Jan. 8, 2025 Surrick, J.), the court denied a Motion for Summary Judgment filed by the Defendant, J.C. Penney relative to a slip and fall event in a case in which the Plaintiff alleged that he slipped and fell on a substance he believed to be vomit while he was shopping at the Defendant store. 

According to the Opinion, just prior to the incident, the Plaintiff was walking through the children’s department of the store, primarily looking ahead while also noticing items on the surrounding display racks. He suddenly felt a slippery substance under his feet and slipped and fell.

The Plaintiff admitted that he did not see the slippery substance on the floor prior to his fall even though his view was unobstructed. The substance on the floor was described as being 1-2 feet in diameter and was a slightly brown color that was almost the same color as the floor. 

The Plaintiff testified that he was not sure that he would have seen the substance even if he had been looking down at the floor given the similarity in color between the substance and the floor. 

There were no warning signs around at the time that the Plaintiff fell.

The court also confirmed that the Defendant store conceded that it did not immediately clean up the substance once it was reported prior to the Plaintiff's fall. An employee of the store testified that she had informed a manager on duty multiple times that there was vomit on the floor prior to the Plaintiff’s fall. The store employee stated that she was advised by the manager that the priority at the time was addressing a leak in the ceiling. 

After the Plaintiff slipped and fell, the store employee reported the incident to her manager again, at which point the substance was cleaned up.

In this matter, the Defendant argued that the Plaintiff’s claims failed because the substance on the aisle floor was an open and obvious danger that the Plaintiff should have seen and avoided. The Plaintiff argued that genuine issues of material fact existed as to whether or not the substance was open and obvious condition.

The court denied the Motion for Summary Judgment and found that, drawing all inferences in a light most favorable to the non-moving party as required by the applicable standard of review, reasonable jurors could disagree as to whether or not, under the circumstances presented, the substance on the floor constituted an open and obvious danger.

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


Source: Article – “JCPenney Customer’s Slip-And-Fall From Bodily Substance Suit Best Left For a Jury to Decide, Judge Rules” by Riley Brennan of The Legal Intelligencer (Jan. 10, 2025).

Snowboarder's Estate Denied Recovery Under Skiier's Responsibility Act


In the case of Birl v. Shawnee Mountain, No. 3:22-CV-1598 (M.D. Pa. Jan. 6, 2025 Bloom, MAG. J.), the court entered summary judgment in favor of a Defendant’s ski resort after finding that the Skier’s Responsibility Act prevented the Plaintiffs from taking their case over injuries sustained by their son to trial.

According to the Opinion, the Plaintiffs sued Shawnee Mountain Ski Resort with a paralysis suffered by the then 16 year old Plaintiff who struck a light pole while snowboarding. The Plaintiffs alleged that the pole was unguarded and improperly placed.

The court noted that the law recognizes that snowboarding is a dangerous activity. The court additionally noted that the law recognizes that riding a snowboard in a terrain park to perform tricks and jumps increases the risk of injury associated with that activity.

The court ruled that, even accepting the Plaintiffs’ version of the events, that is, that the course caused the minor Plaintiff’s loss of control and, ultimately, his collision with a off-trail obstacle, the court noted that this risk was inherent to the activity undertaken by the minor Plaintiff, which was snowboarding in a terrain park.

As such, the court entered summary judgment in favor of the ski resort.

Anyone wishing to review this case may click this LINK.  The Court's companion Order can be viewed HERE.



Source of image:  Photo by Allesandro Maculotti on www.unsplash.com.

Friday, January 24, 2025

PLEASE CONSIDER VOLUNTEERING TO BE A MOCK TRIAL JUROR FOR COMPETITION IN SCRANTON


 

No Right To a New Trial Found After Trial Court Re-Opened Evidence After First Non-Jury Verdict And Then Entered Identical Second Non-Jury Verdict


In the non-precedential decision in the case of Graffia v. Thomas, No. 1497 WDA 2023 (Pa. Super. Dec. 30, 2024 Murray, J, McLaughlin, J., and King, J.) (Op. by King, J.), the court affirmed a trial court’s verdict in a non-jury case following the entry of a default judgment against the Defendant.

In this non-jury trial matter, the trial court issued a verdict prior to rendering a decision on whether the rebuttal testimony of the Plaintiff’s expert was admissible.

The trial court ultimately found that the rebuttal testimony was admissible.  As such, the trial court vacated its original verdict in order to take all of the evidence into consideration.

The trial court then issued a second verdict that was identical to the first verdict.

The Plaintiff appealed and argued that the trial court did not have the authority to vacate the first verdict after forty-three (43) days. The Plaintiff requested a new trial.

The Superior Court found that the trial court committed harmless error. The court noted that, since all of the evidence was taken into consideration prior to the rendering of the second verdict, the Plaintiff failed to demonstrate any prejudice.

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


I send thanks to Attorney Kasey E. Cahill of the Pittsburgh, PA office of Summers, McDonell, Hudock, Guthrie & Rauch P.C. for bringing this case to my attention.

Wednesday, January 22, 2025

Court Finds No Duty Owed By Landowner Where Person Hit By Wayward Target Shooting Shot Coming From the Land


In the case of Folcomer v. Craft, No. 2018-SU-0025278 (C.P. York. Co. Jan. 8, 2025 Menges, J.), the court granted a Motion for Summary Judgment filed by certain Defendants in a tragic shooting accident matter.

According to the Opinion, one of the Defendants in this case lived on the moving Defendant’s property. On the day of the incident, certain Co-Defendants were target shooting on the property.

Nearby, the Plaintiff and the Plaintiff’s decedent left their home and began a drive.

A bullet from the shooting target area of the nearby home traveled through the target, into the nearby woods, ricochet off a roadway and struck the decedent who was a passenger in the Plaintiff’s vehicle.

The Defendants who filed the summary judgment motion in this case were the owners of the property on which the target shooting was taking place.

In this decision, the court ruled that no duty exists to control the acts of third parties unless a “special relationship exists with either the actor the victim."

In this decision, the court also addressed the Nanty-Glo rule and found that this rule did not bar summary judgment in this case as the testimony relied upon by the moving the Defendant was from adversarial Co-Defendants.

The court also referred to §318 of the Restatement (Second) of Torts and found that the moving Defendant landowners had no duty to control the conduct of the shooting Defendants as there was no evidence that the moving Defendants were aware of any continuous or dangerous use of the land that would have allowed them an opportunity to intervene. In this case, it appeared that the act of target shooting on the property was not an ordinary event.

In the end, the court granted the Motion for Summary Judgment filed by the moving Defendants who were the owners of the land in question.

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


I send thanks to Attorney Stephen M. Hickey of the York, PA law firm of Griffith, Lerman, Lutz & Scheib for bringing this case to my attention.

Federal Court Addresses When Time Begins To Run To Determine if Removal To Federal Court Was Filed Too Late


In the case of Baucom v. Vidal, No. 2:24-CV-01818-JFM (E.D. Pa. Dec. 12, 2024 Murphy, J.), the court addressed a Plaintiff’s Motion to Remand a motor vehicle accident case from federal court back down to state court. 

The court noted that the issue before it was when the Defendant’s thirty (30) day time period to remove a case to federal court begins to run.

According to the Opinion, the Plaintiffs filed this suit in the Court of Common Pleas of Philadelphia and alleged that the damages claimed were in excess of $50,000.00.

At some point in time after the statutory thirty (30) day removal clock had expired, the Plaintiffs made it known that they were actually seeking more than $350,000.00, that is, an amount more than enough to satisfy the $75,000 amount necessary to support diversity jurisdiction.

At that point in time, the Defendants filed a Notice of Removal to the federal court. The Plaintiff then moved to remand the case back to state court, saying that the removal was too late.

The court noted that the questions before it was whether the original Complaint filed in the state court put the Defendants on notice that the amount in controversy exceeded $75,000.00.

Judge Murphy noted that the answer to this question is straightforward under the Third Circuit Court of Appeals’ bright-line test.  Under the appropriate standard of review, the court noted that, if an initial pleading does not give the Defendant notice of the right to remove the case to federal court, the Defendants shall file a Notice of Removal within thirty (30) days after receipt, by the Defendant, of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has indeed become removable. In this regard, the court cited to the Third Circuit’s decision in McLaren v. UPS Store, Inc., 32 F.4th 232 (3d Cir. 2022).

This federal district court noted that the Defendants were not on notice that the amount in controversy exceeded $75,000.00 until the Plaintiffs made their $350,000.00 settlement demand. As such, the court found that the Defendant’s removal was timely. Accordingly, the Plaintiff’s Motion to Remand was denied.

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

Source: “The Legal Intelligencer Federal Case Alert.” www.Law.com (Jan. 2025).

Monday, January 20, 2025

Many Volunteer Jurors Needed For First Round Of Mock Trial Competition in Scranton on February 4, 2025


HOPING YOU CAN PLEASE CONSIDER DONATING YOUR TIME AND EXPERTISE AS A MOCK TRIAL JUROR FOR THIS YEAR'S COMPETITION IN SCRANTON, PA.   



Federal Court Judge Wolson Allows Plaintiff to Secure Claims Evaluation Documentation From UIM Carrier in Discovery


In the case of Long v. Progressive Adv. Ins. Co., No. 2:24-CV-01735-JDW (E.D. Pa. Dec. 11, 2024 Wolson, J.), the court addressed a Motion to Compel filed by a Plaintiff against a UIM carrier.

According to the Opinion, the Plaintiff was involved in a motor vehicle accident and brought a UIM claim against Progressive.

During the course of the matter, Plaintiff’s counsel sent a demand package to Progressive requesting the tendering of the limits. The court noted that the Defendant had not yet evaluated the Plaintiff’s claim but did so thereafter.

It was noted that, when Progressive produced a claim evaluation documentation in discovery, the carrier had redacted information from the document, including the value it had placed on the Plaintiff’s claim as well as with respect to the analysis with the specific elements of the Plaintiff’s claim. Progressive redacted the documents on work product grounds.

The Plaintiff filed a Motion to Compel the Defendant carrier to produce an unredacted document.

The court granted the Plaintiff’s Motion after finding that the Defendant carrier had failed to meet its burden of showing that it had created the information, which had been redacted, in anticipation of litigation.

The court noted that the UIM carrier had a duty to investigate and evaluate the Plaintiff’s UIM claim and, based on the court's review of the record before it, the carrier had not yet investigated and evaluated the claims presented by the time it created the claim evaluation document.

Although the court acknowledged that the demand letter from Plaintiff’s counsel could have prompted the Defendant to conduct the evaluation or to complete it quicker, the court found that the Defendant had a separate, business-related (i.e, not litigation-related) obligation to perform the evaluation.

Judge Wolson additionally noted that the demand letter did not demand any more than what Progressive had offered or more than the policy limits. The demand letter also did not threaten a bad faith claim. Accordingly, the court found that there were no circumstances to suggest that the evaluation by the carrier was prepared in anticipation of litigation.

Judge Wolson noted held that there was no per se rule that every document created by an insurance company after receiving a demand letter from an insured qualified as a document protected by the work product doctrine. The court ruled in this fashion after finding that a demand letter did not absolve an insurance company of its obligation to evaluate a claim.

Accordingly, the court rejected the carrier’s assertion of the work product privilege over a claim evaluation document where the carrier had a legal obligation to evaluate an insured’s claim and had not yet evaluated the claim when the insured sent a demand letter. 

In essence, the court in this matter felt that this demonstrated that the evaluation was prepared in the ordinary course of business, rather than in anticipation of litigation.

Accordingly, the court granted the Plaintiff’s Motion to Compel discovery.

It is noted that the court began its Opinion by indicating “[i]insurance companies evaluate claims as part of their business, and their claims evaluations often result in demands from policyholders and then litigation. In discovery, that reality poses a challenge: “litigants (and then judges) must decide when an insurance company created a claim evaluation document in the course of its business and when it did so in anticipation of litigation. The first category of documents is discoverable, but the latter is work product that Federal Rule of Civil Procedure 26(b) protects.”

Judge Wolson noted that the work product doctrine, which is codified under Federal Rule of Civil Procedure 26(b)(3) protects materials prepared in anticipation of litigation from discovery unless certain exceptions apply. The court noted that the work product immunity shelters an attorney’s mental processes, providing a privileged area for the attorney to analyze and prepare his client’s case.

The court also noted that a party claiming work product protection bears the burden of showing that the materials in question were prepared in the course of preparation for possible litigation.

The court reiterated that, because insurance companies evaluate claims made by their insureds in the ordinary course of their business, and outside of any possible litigation in the future, discovery disputes involving insurance company claims file often present problems for the parties in the court.

As noted, under the circumstances presented in this case, Judge Wolson found that claim evaluation documentation prepared by the carrier did not amount to a document that was prepared in preparation for litigation.  The Judge found, after an in camera review, that the document, in the Judge's eyes, revealed claims handling matters and not litigation analysis.  As such, the Plaintiff's Motion to Compel was granted.  

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


Source: “The Legal Intelligencer Federal Case Alert.” www.Law.com (Jan. 9, 2025).

Friday, January 17, 2025

Upcoming Rule Change (Effective April 1, 2025) Mandates that Trial Court Judges Sit in on Jury Selection

No More Leaving Jurors Alone with the Attorneys (unless agreed)

On January 7, 2025, the Pennsylvania Supreme Court approved a change to the Pennsylvania Rules of Civil Procedure to include a mandate that a trial court judge be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement. This rule is set to take effect on April 1, 2025 and can be found under Pa. R.C.P. 220.3.

A copy of the changes to the Rule can be seen at this LINK.

Source: Article – “Phila. Court System Pushed To Adapt As Justices Greenlight Changes to Pa.’s Civil Jury Selection Rules” By: Aleeza Furman of the Pennsylvania Law Weekly (Jan. 8, 2025).

Thursday, January 16, 2025

Court Rejects Defense Contention that Bad Faith Conduct on Part of Plaintiff Prevented a Timely Removal to Federal Court


In the case of Gainer v. Bordertown Transp., Inc., No. 2:24-CV-01296-KNS (E.D. Pa. Dec. 2, 2024 Scott, J.), the Federal Eastern District Court granted a Plaintiff’s Motion for a Remand of a personal injury litigation to state court where the federal court found that the Plaintiff’s litigation conduct while the case was at the state court trial level, which case handling ended up with the removal request being facially untimely, did not evidence bad faith on the part of the Plaintiff.

According to the Opinion, the case involved a Plaintiff who was injured while she was standing behind the wheel of a truck that was hit by the Defendant’s vehicle. The Plaintiffs sued the Defendant tortfeasor and also sued PennDOT.

However, after over a year of discovery and pre-trial litigation that resulted in the dismissal of PennDOT from the action, the remaining Defendants then removed the case to federal court.

The Plaintiff then filed the present Motion for Remand. The Defendants opposed the motion on the grounds that the Plaintiff had acted in bad faith to prevent the removal in the first place.

According to the Opinion, there is a dearth of case law in the Third Circuit regarding the definition of bad faith in this context.

The court noted that bad faith under the removal statute, 28 U.S.C. §1446(c)(1) means “intentional conduct on behalf of the Plaintiff which denies the Defendant the opportunity to remove the case to federal court.”  The court noted that bad faith can be demonstrated through circumstantial evidence.
The court also noted that, when completing the analysis of allegations of bad faith in this case, a court must look at all available evidence to determine whether the Plaintiff engaged in intentional conduct to deny the Defendant the chance for removal. 

In this case, the Defendants were alleging that, although PennDOT was in the case in the state court matter, the Plaintiff did not move forward in terms of any efforts to enter a default judgment against PennDOT, move to strike PennDOT’s untimely Answer to the Complaint, or otherwise move to compel PennDOT to comply with discovery requests. The defense also noted that the Plaintiff dismissed PennDOT from the suit a little over two months after the expiration of the one year removal deadline. The defense additionally indicated that the Plaintiff made no effort to settle with PennDOT before dismissing PennDOT from the case and did not otherwise have the Plaintiff’s expert witness attempt to establish liability against PennDOT in any expert report.

The Plaintiff responded by indicating that many of the decisions relative to the Plaintiff’s litigation conduct were based on practice customs in the Philadelphia County Court, were based upon strategy, and were not based on any motivation to thwart the Defendants’ removal rights. The Plaintiff contended that motions for a default judgment, or to strike an untimely answer to a Complaint or to compel discovery would not have functionally improved the Plaintiff’s position in the litigation because Plaintiff’s counsel had allegedly never seen any of these types of motions successfully granted in the Philadelphia County Court of Common Pleas.

The Plaintiffs also noted that they chose not to dismiss PennDOT from the suit previously, jointly with the Defendants, because the Plaintiffs felt that the individual tortfeasor Defendants bore the vast majority of the liability. Moreover, the Plaintiffs had a strategy of attempting to gut the Defendants’ likely joint tortfeasor arguments at trial.

The Plaintiffs also noted that they waited until the date they did to dismiss PennDOT from the suit because they were waiting to fully assess the Defendants’ expert report, which report was dated three days after the one year removal deadline expired. The Plaintiff noted that it was determined within the Plaintiff’s strategy that it would be best to remove PennDOT from the case to instead focus the liability arguments against the individual Defendants, particularly where the Defendants remaining in the case had already admitted liability but PennDOT did not. As such, Plaintiff’s counsel noted that it would be an easier, cleaner, and cheaper trial without PennDOT because the Plaintiff would not have to establish PennDOT’s liability at any trial if PennDOT was dismissed from the case.

With regard to the argument that the Plaintiff did not try to seek out settlement with PennDOT prior to dismissing PennDOT, Plaintiff’s counsel explained to the court that there were settlement conversations with PennDOT but that they were not successful.

Based upon the above, as well as additional factors noted in the Opinion, the court held that the individual Defendants in this case had not met their heavy burden of demonstrating bad faith on the part of the Plaintiff. Rather, the Plaintiff was found to have offered plausible strategic arguments in explanations of the Plaintiff’s strategic decisions. Accordingly, the court did not find that the Plaintiff engaged in any intentional conduct to deny the Defendants the opportunity to move the case to federal court.

While the court noted, in this case, that the issue of whether Plaintiff’s counsel’s strategic decisions were the best course of action was irrelevant to the court’s consideration, the court did also note that, in other cases, the court is permitted to call into question the sincerity of the Plaintiff’s “strategic decisions” and to make a finding of bad faith. However, such was not the case in this matter.

In the end, the court granted Plaintiff’s Motion to Remand the case to the Philadelphia County Court of Common Pleas.

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


Source: “The Legal Intelligencer Federal Case Alert,” www.Law.com (Jan. 2, 2025).




Tuesday, January 14, 2025

Superior Court Reaffirms The Law on Limitations To Scope of Expert Opinions By Treating Physicians


In the case of Kunkel v. Abington Memorial Hospital, No. 2024 Pa. Super. 298 (Pa. Super. Dec. 13, 2024 Stabile, J., Lane, J., and Lazarus, J.) (Op. by Stabile, J.) (Lazarus, J., concurring in the result), the Pennsylvania Superior Court addressed various issues regarding expert testimony in a medical malpractice case.

On one issue, the court confirmed that it was not an abuse of discretion by the trial court to exclude one of the Plaintiff’s identified expert witnesses as cumulative. The court generally noted that cumulative evidence is additional evidence that supports a fact already established by other evidence in the case.

On another issue of note, the Pennsylvania Superior Court reaffirms the well-settled rule that, while treating physicians may testify as experts without being identified under Pa. R.C.P. 4003.5(a), such doctors are limited to opinions formed in the course of their treatment, not opinions developed in anticipation of litigation.

Here, the court found that the causation opinions of two (2) of the Plaintiff’s treating physicians were properly excluded by the trial court because those physicians only formed their opinions on causation in preparation for this litigation.

The court noted that its review of the medical records from those physicians did not contain any hint of any such opinions on causation. The Superior Court agreed that the exclusion of those opinions on causation were required by the Plaintiff’s failure to identify those experts as expert witnesses for trial during the course of discovery as required by the Rules of Civil Procedure.

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.

Monday, January 13, 2025

Court Grants Summary Judgment on Recklessness and Punitive Damages Claims in a Trucking Accident Case


In an Opinion that is tersely worded at times in the case of Medina v. One Stop Center, Inc., No. 2:22-CV-01031-CB (Jan. 2, 2025 Bissoon, J.), the court granted a Defendant’s Motion for Summary Judgment on a claim for punitive damages in a trucking accident case. In so ruling, the court also reject the Plaintiff’s liability expert’s opinion.

As to the Plaintiff’s expert, the court found that the expert’s opinion did not meet the standards required by Federal Rules of Evidence 702. The court additionally faulted the expert for veering into areas reserved for the jury, that is, by offering opinions based on his assessment of the credibility of witnesses and parties.

Overall, reviewing then facts of the case, which involved an accident when the drivers encountered unexpected black ice on the roadway, did not support a finding of reckless indifference on the part of the Defendant driver. Accordingly, the court granted the Motion for Summary Judgment filed by one of the Defendant.

Relative to a separate decision in this Opinion on a Borrowed Servant Doctrine issue raised by a different Defendant, the Court denied that Defendant's Motion for Summary Judgment on that issue   

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

I send thanks to Attorney Aaron H. Weiss of the Pittsburgh, PA law firm of Zimmer Kunz, PLLC, for bringing this case to my attention.

Friday, January 10, 2025

Try Eagles Try



In the case of Philadelphia Eagles Limited Partnership v. Factory Mut. Ins. Co., No. 2:21-CV-01776-MMB (E.D. Pa. Dec. 13, 2024 Baylson, J.), the court denied a Motion for Reconsideration filed by the Plaintiff, Philadelphia Eagles, relative to the court’s previous decision to dismiss its Complaint in this coverage action related to the COVID-19 pandemic.

According to the Opinion, the Plaintiff, Philadelphia Eagles, LP, asserted that it was forced to shut down or modify operations for its various insured properties due to the COVID-19 pandemic and allegedly sustained financial losses as a result. The Defendant insurance carrier had denied coverage under the terms of the policy.

The Plaintiff sought a declaration that its losses were covered by the Defendant’s policy and that the Defendant was estopped from arguing that communicable diseases could not trigger coverage under the policy requiring a physical loss or damage to property to implicate coverage. In its previous decision, the trial court had followed other Pennsylvania Supreme Court and Third Circuit Court decisions to grant the Defendant carrier’s Motion to Dismiss.

Here, the Plaintiff’s Motion for Reconsideration was denied after the court again found that there mere presence of communicable disease at a business location did not render the property sufficiently dangerous to constitute a physical loss or damage that triggered insurance coverage.

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


Source: “The Legal Intelligencer Federal Case Alert,” www.Law.com (Jan. 2, 2025).

Wednesday, January 8, 2025

No Jurisdiction Where Foreign Corporation Had No Direct Contacts With Pennsylvania


In the case of Montgomery v. Bobst Mex SA, No. 24-367 (E.D. Pa. Dec. 13, 2024 Arteaga, Mag. J.), the court granted a Motion to Dismiss based upon jurisdictional issues. More specifically, the court found that the Defendant, which was a Swiss corporation, was not subject to personal jurisdiction in Pennsylvania.

According to the Opinion, the Defendant sold all of its products, including the one that allegedly injured the Plaintiff, to a New York sole distributor. There was no evidence that the Defendant directed any of its activities at or in Pennsylvania.

The court noted that the record otherwise confirmed that there was no direct contacts by the Defendant in Pennsylvania.

Moreover, the court noted that any subsequent sales in the United States was at the discretion of the sole distributor in New York, with no direction being provided to that distributor by the Swiss corporation Defendant.

Although the Swiss Defendant allegedly had knowledge of Pennsylvania end-users of the product, the court found that evidence in this regard, without more, was insufficient to establish specific jurisdiction.

In the end, the federal court found that, without evidence of a strong relationship between the Defendant, the forum, and the litigation, the court could not exercise specific jurisdiction over that Swiss corporation as a Defendant. Accordingly, the Defendant’s Motion to Dismiss was granted.

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

Source of image:  Photo by Pavel Danilyuk on www.pexels.com.

Monday, January 6, 2025

TORT TALK AS A RESEARCH TOOL


Most Tort Talkers receive their Tort Talk info by way of email. If you are not already an email subscriber to Tort Talk and would like to become one (it's FREE), please go to Tort Talk at www.TortTalk.com and insert your email address into the Email Subscription box in the upper right hand corner of the blog and follow the instructions to complete the process.

Once you are up and running, you will automatically receive the updated posts added to Tort Talk (an average of 2-3 per week) on notable cases and trends in Pennsylvania Civil Litigation Law.

In addition to Tort Talk being a way to get free continuing updates on notable new cases and trends, it can also serve to kickstart your legal research in a streamlined fashion if you actually go to the Tort Talk site at www.TortTalk.com.  

On the site itself there are a number of research tools to help you find the case(s) or article(s) you are looking for.

Please note that Tort Talk is NOT an exhaustive legal research site--you should always supplement your research on your issue(s) presented elsewhere to ensure that you have a thorough review of the area of law in question.  Also, any case you find should be "Shepardized" to see if there has been any more recent, adverse (or favorable) rulings.

Here are the research tools available on Tort Talk that you can use to kickstart and streamline your research:


Search This Blog Box

The "Search This Blog" Box in the upper right hand column of the site allows readers to type in search terms or key words to look for posts on that particular topic. 

By typing in your search term in the white box (terms like, "delay damages," "limited tort," "slip and fall," or a case name, etc.), you will be sent to a page that will list each Tort Talk post that covers that topic. You can then click on a Link within each post that comes up in order to read the actual decision of the court.   
If the blog post does not have a Link to the decision but instead notes that you can email me for a copy, please do not hesitate to send me an email to request a copy of the decision.


Post-Koken Scorecard

You can always access the Post-Koken Scorecard to check on the status of decisions in your county on Post-Koken issues by scrolling down the right hand column of the blog and clicking on the date under the Label "Post-Koken Scorecard."


Facebook Discovery Scorecard

You can always access the Facebook Discovery Scorecard to check on the status of Pennsylvania decisions on Facebook Discovery issues by scrolling down the right hand column of the blog and clicking on the date under the Label "Facebook Discovery Scorecard."


Labels

Further down on the right hand column of the Tort Talk blog is a section called "Labels," which is another tool that you can use to find cases or articles on a specific topic.  

The topics, or Labels, are listed in alphabetical order.  

By clicking on the Label that's specific to your research ("Bad Faith," "Limited Tort," "Future Medical Expenses," etc.) you will be sent to a page that list each and every Tort Talk post that touches upon that topic.


Published Articles

If you type the word "Article" in the Search Box on the upper right hand corner of the blog, you will get to a number of different articles on various civil litigation issues.

You can get more specific in your search for an article as well, such as typing "Article recklessness," and that will bring you to an article on that topic.


Links

Last but certainly not least, down on the right hand column is a list of "Links" I have created to other sites, including my Firm's website and other online professional profiles that I have created along with links to some other legal and non-legal-related websites that may be of interest.



Thanks again for reading Tort Talk and thanks to all who have provided tips on breaking news and cases of note. I am grateful for your interest and support of the Tort Talk Blog.  Please feel free to send me a copy of any notable decisions you may generate in your practice for possible highlighting here on Tort Talk.

If I should be able to you help out in any way with respect to research on Tort Talk, or in any other way, please do not hesitate to contact me at dancummins@CumminsLaw.net or at 570-591-3969.  


Please also contact me should you need any help with setting up a Mediation with Cummins Mediation Services.


(570) 319-5899

dancummins@CumminsLaw.net

Friday, January 3, 2025

Link for the Marhunova v. Fitler Constr. Group Case

Here is the LINK  for the case of Marhunova v. Fitler Constr. Group, May Term, 2022, No. 01520 (C.P. Phila. Co. Dec. 24, 2024 Foglietta, J.), which was highlighted in yesterday's Tort Talk blog post.  In this case, the trial court rejected a challenge by a Defendant to a $68.5 million dollar verdict in a case involving a construction site accident that resulted in the death of the Plaintiff construction worker.

Apologies for any confusion or consternation caused by the Link not being included in yesterday's post.

Thanks for reading Tort Talk.

Seismic Change Caused By Superior Court Decision That Allows Plaintiffs To Recover Liability and UIM Coverage From the Same Policy


The year 2025 is starting off with a Pennsylvania Superior Court decision that will cause a change of seismic propotions in automobile UM/UIM litigation going forward.

In the case of Erie Insurance Exchange v. Baluch, No. 2025 Pa. Super. 2 (Pa. Super. Jan. 2, 2025 Panella, P.J.E., Lane, J., and Stevens, P.J.E.)(Op. by Panella, P.J.E.), the Pennsylvania has ruled that, in certain circumstances a Plaintiff can recover both liability and UIM coverage from the same policy.

The appellate court framed the issue in this case as whether an insured is entitled to stacked UIM benefits although another household policy excludes vehicles that are insured under the policy from the definition of “underinsured motor vehicles.”

According to the Opinion, in April 2022, the Plaintiff, while riding as a passenger on a motorcycle, suffered serious bodily injury from a single vehicle motorcycle accident.

Two insurance policies issued by Erie were relevant to this case. The Plaintiff’s stepfather and mother were named insureds on a policy that covered the motorcycle and other vehicles (“Policy 1”). As a member of her parent’s household, the Plaintiff was an insured of Policy 1. Policy 1 provided $100,000 per person in liability coverage and $100,000 per person in uninsured motorist (“UM”) and UIM coverage.

The Plaintiff also had a separate policy for her personal vehicle (“Policy 2”). Policy 2 provided $100,000 in UM/UIM coverage.

The Superior Court noted that, “[i]mportantly,” under both Policy 1 and Policy 2 the insureds had selected stacking UIM coverage.

According to the Opinion, Erie paid out to the Plaintiff the $100,000 liability coverage from Policy 1 and $100,000 in UM/UIM coverage from Policy 2. However, Erie denied the Plaintiff’s claim seeking $100,000 in UM/UIM coverage from Policy 1 through stacking.

Under Policy 1, vehicles that are insured under the policy were excluded by the language of the policy from the definition of “underinsured motor vehicle.”  It is this exclusion that Erie relied upon to deny the Plaintiff UIM benefits from Policy 1.

The Superior Court disagreed with the carrier’s position, as well as the trial court’s position, that the resolution of the issue presented was controlled by Wolgemuth v. Harleysville Mut. Ins. Co., 535 A.2d 1145 (Pa. Super. 1988) (en banc) and Newkirk v. United Servs. Auto. Ass’n, 564 A.2d 1263 (Pa. Super. 1989).

The Superior Court noted that the Wolgemuth and Newkirk decisions stand for the proposition
that liability coverage and primary underinsured motorist (“UIM”) coverage cannot come from the same, single policy. The Superior Court in this Erie Insurance v. Baluch case emphasized that the Wogelmuth and Newkirk cases addressed only a single insurance policy, not any issues of stacked coverage between two or more policies.

The Superior Court distinguished this Erie Insurance v. Baluch case by noting that this Baluch case involved secondary UIM coverage on another vehicle in the household that was stacked on top of the primary UIM coverage from a separate policy that actually covered the vehicle/motorcycle that was involved in the accident.

The Superior Court reasoned that when an insured has their own motor vehicle insurance policy that provides stacked UIM coverage, under Pennsylvania’s Motor Vehicle Financial Responsibility Law, they are entitled to stack UIM coverage from other household policies unless they expressly choose to waive stacked coverage. See 75 Pa.C.S.A. § 1738(a).

In this regard, the Superior Court cited favorably to the case of Gallagher v. GEICO, 201 A.3d 131 (Pa. 2019) and related cases as precedent that prevents an automobile insurance carrier from having policy language that acts as a de facto waiver of stacked coverage where the MVFRL requires carriers to secure written waivers of stacked coverage from its insureds.

Here, the Superior Court found that the insured Plaintiff elected and paid for stacked UIM coverage under her own separate policy. As such, Erie Insurance Exchange’s limited definition of “underinsured motor vehicle,” in the eyes of this Superior Court panel, acted as a disguised waiver of UIM coverage and the Court therefore found the exclusionary language under the policy to be invalid as conflicting with the requirements of the MVFRL relative to UIM coverage.

Accordingly, the Superior Court ruled that, because Erie’s policy provision prevented the Plaintiff from recovering stacked UIM benefits for which she paid, and given that the trial court had erred in concluding that the present case was controlled by Wolgemuth and Newkirk, the Superior Court reversed the trial court’s decision and entered a ruling in favor of the Plaintiff.

In the end, the Superior Court reasoned that, under Pennsylvania law, an injured party should be entitled to receive the coverage for which they paid. Here, the Plaintiff paid for stacked coverage and, in the eyes of this panel, was entitled to such coverage.

Anyone wishing to review this Opinion may click this LINK.

I send thanks to Scott Cooper, Esq. of the Harrisburg, PA law firm of Schmidt Kramer, as well as Adam T. Wolfe, Esq. and Ally Sholley, Esq. of the Enola, PA law firm of Shollenberger, Januzzi & Wolfe for bringing this notable decision to my attention.

Multi-Million Dollar Jury Verdict Upheld By Philadelphia Court


In the case of Marhunova v. Fitler Constr. Group, May Term, 2022, No. 01520 (C.P. Phila. Co. Dec. 24, 2024 Foglietta, J.), the trial court rejected a challenge by a Defendant to a $68.5 million dollar verdict in a case involving a construction site accident that resulted in the death of the Plaintiff construction worker.

According to the Opinion, the Plaintiff's decedent fell from the fifth floor of a building to his death.  Among the claims presented was that the Plaintiff's decedent was not presented with fall protection equipment.

In reviewing post-trial motions, the trial court judge wrote in his Rule 1925 Opinion that the Plaintiff had presented sufficient evidence to support the jury's verdict.  The court noted that the Plaintiff had presented sufficient evidence to enable the jury to make a determination as to who the alleged general contractor on the job was and who, therefore, was responsible for the provision of safety equipment on the site. 

In response to the challenges to the amount of the award, the court otherwise held that there was no evidence that the jury's award resulted from bias, impartiality, prejudice or ill will.  The court instead found that the verdict was supported by the evidence presented and that the verdict was not grossly excessive under the circumstances and, therefore, did not shock the court's conscience.

Anyone wishing to review this decision may click this LINK.

Source:  Article - "Phila. Judge Upholds $68.5M Verdict Over Construction Worker's Death" by Aleeza Furman of The Legal Intelligencer (Dec. 27, 2024).

Source of above image:  Photo by Sylvia Brazzoduro on www.unsplash.com.