Law Applicable to Chain Reaction Car Accidents Reviewed

In the motor vehicle accident case of Jaurez v. Friess, No. 13-145 (W.D. Pa. Feb. 3, 2016 Conti, J.), the West District Federal Court denied summary judgment in a chain reaction motor vehicle accident case. 

In so ruling, the court reviewed the law pertaining to joint tortfeasors as well as the law of causation. 

Applying the law to the case before it, the court in Jaurez stated that, in a multi-vehicle collision, liability can still potentially be found on all involved, including with respect to vehicles that did not collide with each other under their own power, but rather, were pushed into one another.   Stated otherwise, the court ruled that it cannot be said, as a matter of law, that just because two vehicles did not collide with one another under their own power, that those operators were not liable.  The court noted that the causal negligence of those operators may be inferred from those motorists bringing their vehicles too close to one after which a third party to smash them together.  

Based upon these issues presented by the facts before the court, summary judgment in favor of certain defendants was denied.

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.   Please be sure to check out Attorney Beck’s excellent blog, the Drug and Device Law Blog (Click HERE to check out Attorney Beck's blog).  

Ability of Parent To Recover Damages In Own Right Where Child Injured In MVA

A common question in automobile accident personal injury matters is to what extent a parent can recover damages in a case where claims are pursued on behalf of a minor Plaintiff. 

This issue was addressed in a recent decision by Lycoming County Court of Common Pleas Judge Richard A. Gray in the case of Ritter v. Makos, No. 14-02653 (C.P. Lycoming Co. Nov. 5, 2015 Gray, J.).

In Ritter, the Plaintiff-mother was driving with the Plaintiff-minor, i.e., her daughter, when they were involved in a motor vehicle collision.  A Complaint was filed for personal injuries to the minor Plaintiff.  The Plaintiff-mother did not sustain any permanent personal injuries.

A separate Complaint was filed on behalf of the Plaintiff-mother for her alleged damages arising out of the same accident.  Included in the Plaintiff-mother's Complaint was a claim for a recovery by the Plaintiff-mother of health care costs expended, or to be expended, out-of-pocket by the mother for treatment for the child up to the child reached the age of 18. 

A claim for the pecuniary value of any services the child would have provided to her mother during child's minority if the child was not injured was also asserted on behalf of the Plaintiff-mother.

The defense filed Preliminary Objections asserting that the Plaintiff-mother's claims should be dismissed for failure to state a claim upon which relief may be granted. 

The court denied the Preliminary Objections and noted that the defense had only cited to 75 Pa.C.S.A. Section 1722 of Pennsylvania's Motor Vehicle Financial Responsibility Law ("MVFRL"), but no caselaw.

Judge Richard A. Gray
Lycoming County
 

Judge Gray ruled that the MVFRL did not generally preclude a claim by a parent of a minor child injured in a motor vehicle accident.

The court noted that, under Pennsylvania law, a personal injury to a minor child gives rise to two separate and distinct causes of action.  First, there is a recognized claim for pain and suffering to the child and for losses after the child reaches the age of majority.  Also recognized under Pennsylvania law is a claim by a parent(s) of the injured child for medical expenses and the loss of the minor's services during the minority period of the child's life.

The court noted that, while Section 1722 of the MVFRL precludes double recoveries in auto accident personal injury cases, the claims of the parent and child asserted were separate and distinctly recognized recoverable claims such that no double recovery was involved.

As such, the Preliminary Objections were denied in this regard.

The Preliminary Objections were sustained to the extent the parent was attempting to recover damages for health care expenses and related costs recoverable by the guardian of the minor on the separate claims pursued on behalf of the minor Plaintiff.

Anyone wishing to review this case may click this LINK.

Source:  "Digest of Recent Opinions."  Pennsylvania Law Weekly (Jan. 12, 2016).

Split of Authority in Schuylkill County on Post-Koken Consolidation vs. Severance of Claims Issue

In the Tort Talk blog post a few days ago on the recent Schuylkill County Court of Common Pleas Post-Koken decision in the case of Wall v. Ebersole, Erie Ins. and Donegal Ins., in which Judge Miller ruled in favor of keeping the claims consolidated, it was noted that Judge Miller relied upon a prior Schuylkill County decision issued by Judge John E. Domalakes in the case of Foster v. Naresh and Atlantic States Ins. Co., No. S-2298-2013 (C.P. Schuylkill Co. April 29, 2014 Domalakes, J.). [Click HERE to view that post on the Wall case].

A copy of the Foster decision has been secured.

According to the Opinion, the Defendant UIM carrier filed Preliminary Objections to the Plaintiff's Complaint alleging a misjoinder of the negligence claim against the tortfeasor with the breach of contract claim against the UIM carrier for UIM benefits under one caption in violation of Pa.R.C.P. 2229, pertaining to permissive joinders of causes of action. 

With this argument, the defense cited to a prior Schuylkill County decision by Judge Jacqueline L. Russell in the case of Corridoni v. Temple and MetLife (click HERE to view that Tort Talk blog post), in which a ruling was handed down severing the negligence claims against the tortfeasor from the UIM breach of contract claims against the UIM carrier.

The UIM carrier Defendant in the Foster case also argued that allowing the claims to be consolidated would improperly bring evidence of insurance before the jury at trial.

In reaching his decision in Foster, Judge Domalakes emphasized the reasoning of Judge Terrence R. Nealon in the Lackawanna County Post-Koken decision in Bingham v. Poswistilo, 24 D.&C.5th 17 (C.P. Lacka. Co. 2011 Nealon, J.), finding that Judge Nealon had reviewed the same issue in great detail and with thorough reference to the cases to date.  In the end, Judge Nealon ruled that negligence and UM/UIM claims could be permissibly joined under one caption pursuant to Pa.R.C.P. 2229(b) and that a trial court judge could properly address the issue of evidence of insurance at trial.  [Click HERE for the Tort Talk blog post on Judge Nealon's decision in Bingham].

Judge Domalakes also referenced the Pennsylvania Superior Court decision in Stepanovich v. McGraw as indicating a leaning of that court that the joinder of claims was not improper and that a trial court judge could indeed deal with issues of insurance at trial so as to avoid prejudice to any party.  In light of this suggestion by a reading of the Superior Court's Stepanovich decision, which post-dated the prior decision of Judge Domalakes's colleague on the Schuylkill County Court of Common Pleas in Corridoni, Judge Domalakes chose to follow Judge Nealon's analysis in Bingham and denied the UIM carrier's Preliminary Objections and allowed the case to proceed in a consolidated fashion.

The Foster decision is a good read as Judge Domalakes, as did Judge Nealon in the Bingham case, suggest ways in which a trial court judge could allow and monitor the mentioning of insurance at a Post-Koken trial.

Anyone wishing to review Judge Domalakes's Foster decision out of Schuylkill County (or any other decision mention in this post for that matter) may contact me at dancummins@comcast.net.


I send thanks to Attorney Stephen J. Devine of the Media, PA Law Offices of Kenneth R. Schuster and Associates for providing me with a copy of the Foster decision.

 

 

Vehicles Traveling in Same Direction Are Not Static Objects Under Sudden Emergency Doctrine

In its recent decision in the case of Drew v. Work, 2014 Pa.Super. 137 (Pa. Super. June 30, 2014 Shogan, J., Olson, J., and Wecht,J.)(Op. by Olson, J.), the Pennsylvania Superior Court provided one of its latest decisions on the application of the sudden emergency doctrine in a motor vehicle accident case. 

 

In this case, the Plaintiff testified that the Defendant’s vehicle clipped the Plaintiff’s vehicle while the Plaintiff was passing.   The Defendant testified, instead, that the Plaintiff cut off the Defendant’s vehicle.  

 

At trial, the Plaintiff’s requested Points for Charge on negligence per se related to the Defendant’s alleged unsafe departure from his lane, as well as a request for instructions on the sudden emergency doctrine.  

 

The trial court rejected jury instructions on both charges after deeming the Defendant’s vehicle to be a “static object” since both vehicles were traveling in the same direction.  

 

The jury returned a defense verdict finding the Defendant 40% negligence and the Plaintiff  60% negligent.  

 

On appeal, the Plaintiff argued, in part, that the trial court erred in not providing any requested jury instructions on per se negligence and the sudden emergency doctrine. 

 

The Pennsylvania Superior Court rejected the trial court’s determination that the fact that both parties’ vehicles were traveling in the same direction meant that the Defendant’s vehicle was a “static object.”   The court found that such an analysis to be too rigid of an application of the “static object” and “clear distance ahead” rules.  

 

To the contrary, the Pennsylvania Superior Court stated that the Plaintiff was entitled to an instruction on the sudden emergency doctrine under the four part standard of that doctrine, i.e., (1) an individual suddenly and unexpectedly finds himself or herself confronted with a dangerous situation, (2) that permits no opportunity to assess the danger, (3) and that such a person is entitled to the application of the doctrine if he or she responds appropriately, and (4) where the person invoking the doctrine proves that he or she did not create the emergency.

 

The Superior Court noted that, in the case before it, the testimony supported the jury instruction as there was evidence that the Defendant unexpectedly presented the Plaintiff with a dangerous situation that the Plaintiff responded to appropriately, and where the Plaintiff did not create or contribute to the emergency.

 

The Superior Court also ruled that the trial court erred in not providing the jury instruction on the per se negligence rule given that there was evidence to support such a jury instruction.   

Anyone wishing to review this decision may click this LINK.

Source:  "Case Digests."  Pennsylvania Law Weekly (July 8, 2014).

 

Lehigh County Trial Court Dismisses Punitive Damages Claim Based Solely on Cell Phone Use During Auto Accident

In the case of Pietrulewicz v. Gil, No. 2014 - C - 0826 (C.P. Lehigh Co., June 6, 2014 Reichley, J.), Judge Douglas G. Reichley of the Lehigh County Court of Common Pleas sustained a defendant's preliminary objections and struck a plaintiff's claims for recklessness and punitive damages based upon a plaintiff's allegations that the defendant driver was using a cell phone at the time of the accident.

In the opinion, the court noted that there were allegations that the defendant driver was distracted by her cell phone use when she made a slow left hand turn across the Plaintiff's path of travel and an accident resulted.

The court reviewed several cases handed down to date on this issue and essentially ruled that the mere use of a cell phone while driving without more, does not amount to factual support sufficient to sustain an averment of recklessness and attendant punitive damages.  Rather, such allegations only support a claim of negligence.

 

Anyone wishing to review this cell phone decision out of Lehigh County may click this LINK.


I send thanks to John Hendrzak of the Center Valley, PA law firm of Hendrzak & Lloyd for bringing this notable decision to my attention.

ARTICLE: Automobile 'Black Box' Information Ruled Admissible in Criminal Case

EVIDENCE
Automobile 'Black Box' Information Ruled Admissible in Criminal Case By

Daniel E. Cummins, The Legal Intelligencer
July 1, 2014
Republished here with permission by American Law Media. 
 

Daniel E. Cummins, Esq.
FOLEY, COMERFORD & CUMMINS
Scranton, PA

Every so often in Pennsylvania jurisprudence, an appellate court criminal law decision comes along that could serve to have a substantial impact on the litigation of Pennsylvania personal injury matters.
For instance, in the case of Commonwealth v. Koch, 39 A.3d 996 (Pa.Super. 2011), which is currently on appeal and pending before the Pennsylvania Supreme Court, the Pennsylvania Superior Court treated text messages as "writings" subject to the same requirements for authentication of any other type of writing under Pennsylvania Rule of Evidence 901. Obviously, that issue could have an impact on the admissibility of such evidence, or other forms of social media evidence, in civil litigation matters.

With the increasing inclusion of event data recorders, more commonly known as "black boxes," in automobiles, the time is coming when information gathered by such devices may serve to make or break an auto accident personal injury case.

According to studies, event data recorders in automobiles are capable of recording a wide variety of information, such as whether the brakes were applied, changes in velocity, speed at the time of an impact, whether the cruise control or headlights were on, whether turn signals were activated, the angle of the steering wheel at impact, and whether the seat belt circuits signaled "buckled" or "unbuckled."

Surely, the admission of such objective, scientific and presumably indisputable evidence in support of the crucial facts of any given accident could definitively resolve the many typical factual disputes that make up an automobile accident case.

Novel Auto Accident Evidence
In its recent nonprecedential memorandum decision in the criminal case of Commonwealth v. Safka, 1312 WDA 2012 (Pa.Super. June 2, 2014), the Pennsylvania Superior Court ruled in a case of first impression that information retrieved from a vehicle's black box was admissible in a criminal court proceeding.

The Safka case arose out of charges of vehicular homicide and other moving violations. At trial, the defendant challenged the prosecution's admission of black-box evidence regarding speed. On appeal, the Superior Court ruled that the evidence was indeed admissible in that it was not a type of novel scientific evidence that needed to meet certain stringent expert evidentiary admissibility rules, such as the Frye test.

In his majority opinion, Judge Jack A. Panella noted that the prosecution presented evidence establishing "that the [black-box] technology has existed for almost 40 years, has been adopted by the major automobile manufacturers and has been recognized as an acceptable tool used by accident reconstruction experts to determine a vehicle's speed prior to an impact."

It is also noted that while Judge David N. Wecht dissented on a procedural issue, he otherwise joined in the majority decision that the offered event data recorder information secured from the vehicle at issue did indeed satisfy the Frye test so as to be admissible.

Although the Safka decision was for some reason posted as a nonprecedential decision, it has served to open the door for consideration of such novel evidence. Surely, it is only a matter of time before this rule of admissibility is also tested in the civil litigation context.

The expectation is that courts addressing the issue of the admissibility of this automobile black-box information in the context of the less stringent standards applicable to civil litigation matters would find such evidence to be admissible.

Open Questions

In addition to the test of admissibility, there may also arise questions as to how such black-box information is authenticated. This issue may implicate the ruling and rationale of the Koch case on the authentication of text-message evidence. In other words, the black-box information may be treated similar to documentary evidence being authenticated under Rule 901, titled "Authenticating or Identifying Evidence."

Another open issue may involve the credibility of attacks on the veracity of the information contained in the black box. For example, technological attacks against the device similar to the need for DUI breathalyzer devices to be calibrated or otherwise confirmed to be in proper working order may give rise to a new kind of expert witness who may become common in such cases.

Moreover, once black-box information is found to be admissible in auto accident personal injury matters, the issue becomes whether a party may assert a spoliation defense against an opposing party for failing to preserve such black-box information after a car accident.

If such a spoliation defense is found to be warranted, a court may grant a party an adverse inference jury instruction at trial stating that the jury may infer from the opposing party's failure to preserve the black-box information that such information would have been adverse to that party's position.
It is noted, however, that in at least one case—Parry v. Dyer, Nos. 07-00,445, 06-00,679 (C.P. Lycoming Co. 2007), where the issue of spoliation was raised with respect to the failure of a party to preserve the black-box evidence in a car accident case—the court ruled that neither party would be charged with destruction of the evidence as issues remained as to which party had control over the vehicle following the accident.

Trend Toward 
Preserving Evidence

Although unfortunately listed as nonprecedential, Safka represents at least a foreshadowing of a trend that can be expected to rise not only in criminal matters but also in civil litigation matters in the form of increasing references to and, eventually, reliance upon information gathered from motor vehicle black boxes relative to the facts of an automobile accident.

As such, it may be wise for litigants on both sides of the bar to consider developing procedures to preserve event data recorder information after an accident, particularly where a party denies that he or she was speeding or driving carelessly at the time of an accident.
 
Daniel E. Cummins is a partner and civil litigator with the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.  Attorney Cummins focuses his practice on the defense of personal injury matters in the context of motor vehicle, premises liability, and products liability litigation.

No Liability for Valet Service for Returning Car to Visibly Intoxicated Patron

In its recent decision in the case of Moranko v. Downs Racing LP, 2014 Pa.Super. 128 (Pa.Super. June 24, 2014 Panella, J., Mundy, J., and Platt, J.)(Op. by Panella, J.), the Pennsylvania Superior Court held that Pennsylvania law does not impose a duty upon a casino's valet service to withhold the keys from a motorist if that person appears to be visibly intoxicated.

 

In so ruling the court upheld the entry of summary judgment in favor of the defense entered by Judge William H. Amesbury of the Luzerne County Court of Common Pleas and addressed the issue of first impression of the issue of the duty and ultimate liability of a valet service when a vehicle is returned to an allegedly intoxicated person.

 

The court found that no such duty exists under Pennsylvania law and reasoned that, even accepting as true the allegation that the Plaintiff's decedent was visibly intoxicated when he retrieved his vehicle from the valet service, Pennsylvania law did not impose any duty upon the casino or its valet service to withhold keys from a visibly intoxicated patron. 

 

Applying bailment law, the court noted that the valet service was, instead, duty bound to return the vehicle to its owner when requested.  Once the demand was made for the return of the car, the defendant no longer had control over the vehicle such that a duty could be imposed upon the valet service or the casino for returning the vehicle to a visibly intoxicated person.

 

I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer, Attorney Brian Bevan of the Pittsburgh law firm of DiBella, Geer, McAllister & Best, P.C., and Attorney Walt McClatchy, Jr. of the Philadelphia law firm of McClatchy & Associates for bringing this case to my attention.

 

Anyone wishing to review this Opinion may click this LINK.

LINK to the One Where the Plaintiff Rear-Ended the Defendant and Sued and Court Entered Summary Judgment For Defendant

Tort Talkers may recall that I highlighted the case of Marchese v. Jacobs out of Lycoming County - you know, the one where the Plaintiff motorcyclist rear-ended the Defendant and then sued the Defendant and the Defendant secured a summary judgment.

Many were interested in the case and a number sent me a copy to disseminate.  Here is a LINK to the Marchese decision if you'd like to read it.

I send thanks for sending me a copy or a link to the case to Gary Weber of the Williamsport office of Mitchell Gallagher, Anthony J. Gabriel of the Harrisburg office of Thomas, Thomas & Hafer, Attorney Joseph Kulesa of Mount Pocono, Attorney Walt McClatchy, Jr. out of Philadelphia, and another who wished to remain anonymous.

Pennsylvania Superior Court Revisits Waiver of Stacking Issue

Here is a LINK to the Pennsylvania Superior Court's latest decision on the issue of stacked UM coverage in the case of Bumbarger v. Peerless Ins. Co., 2013 Pa.Super. 47 (Pa.Super. June 6, 2014)(en banc)(Gantman, J., concurring)(Opinion by Lazarus, J.).


In this case, the Plaintiff was involved in an accident with an uninsured driver and filed suit against her own carrier for uninsured motorists benefits.  An issue arose as to whether or not the Plaintiff was entitled to stacked coverage.


The Plaintiff had waived stacked coverage when she originally purchased the policy for coverage on two vehicles.  She eventually later separately added two more vehicles to the policy but the carrier never obtained additional waivers of stacked coverage from the Plaintiff insured.  One of the additional vehicles was added under an endorsement to the policy and, when the fourth vehicle was added to the policy, it was not by way of an endorsement.


The Plaintiff contended that pursuant to the Sackett decisions, the carrier was required to obtain additional waivers of stacking from its insured when the third and fourth vehicles were added to the policy.  The Plaintiff asserted that the carrier breached the policy by failing to allow for stacked coverage.


If it was deemed by the court that the coverage need not be stacked, the Plaintiff would be entitled to $25,000 in coverage.  If stacked coverage was found to be warranted, the stacked coverage would have been $100,000.


After reviewing the law on the issue as applied to the particular facts presented, the Superior Court ruled on its first take on the issue that new waiver of stacking forms were required and that the failure to secure the waivers resulted in the Plaintiff being entitled to stacked coverage.


Reargument en banc was requested and granted by the Superior Court.  In its most recent en banc decision in Bumbarger, the Superior Court ruled in the same fashion noted above, i.e., that new waiver of stacking forms were required and the failure of the carrier to secure them meant that the Plaintiff was entitled to stacked coverage.


As this issue is somewhat convoluted, I have provided a link to the opinion above if you wish to study the court's analysis and rationale.


Suffice it to say, a review of the Sackett decisions and this Bumbarger opinion support a position that a waiver of stacking form should be secured whenever a new vehicle is added to an automobile insurance policy to avoid the issue being raised in the first place.




I send thanks to Attorney Brian Bevan of the Pittsburgh, PA law firm of DiBella, Geer, McAllister & Best, P.C. for bringing this case to my attention.

The Future is Now: Info from Vehicle "Black Box" Is Admissible in a Pennsylvania Criminal Case

Once in a while there comes along an appellate court criminal law decision (albeit non-precedential) that could impact Pennsylvania civil litigation matters.

In its recent “non-precedential” memorandum decision in the case of Commonwealth v. Safka,  No. 1312 - WDA - 2012 (Pa.Super. June 2, 2014 Panella, J., Olsen, J., and Wecht, J.)(Non-Precedential)(Mem. Opinion by Panella, J.)(Concurring and Dissenting Op. by Wecht, J.),  a criminal court case, the Pennsylvania Superior Court ruled in a case of first impression that information retrieved from a vehicle's "event data recorder," more commonly known as the "black box," was admissible in a criminal court proceeding.

[Why the Superior Court would list this notable, trend-setting Opinion as “non-precedential” is puzzling to say the least].


Surely, it is only a matter of time before this rule of admissibility is also applied in the civil litigation context.

Once that happens (or even already), the issue becomes whether a party may assert a spoliation, or destruction of evidence, defense against an opposing party for failing to preserve such black box information after a car accident.  

If such a defense is found to be warranted, a court may grant a party an adverse inference jury instruction at trial stating that the jury may infer from the opposing party's failure to preserve the black box information that such information would have been adverse to that party's position. 

As such, it may be wise to consider developing procedures to preserve such information after an accident, particularly where a party denies that he or she was speeding or driving carelessly at the time of an accident.

To view the majority Opinion in Commonwealth v. Safka, please click HERE.

To view Judge Wecht's concurring and dissenting Opinion, please click this LINK.

Sources:  Article by Zack Needles in June 4, 2014 The Legal Intelligencer entitled "Vehicle Speed Information From 'Black Box' Ruled Admissible."  Also thanks to Attorney Walt A. McClatchy, Jr. of the Philadelphia law insurance defense firm of McClatchy and Associates for this tip.

Are Early Post-Accident Investigation Materials Gathered by Trucking Companies Prior to Litigation Protected by Work Product Privilege?

It is well known that trucking companies often act quickly to investigate accidents involving their vehicles to preserve evidence in the event litigation arises in the future.  Questions arise as to whether the information gathered in such early investigations is protected from discovery by the attorney work product privilege in later lawsuits.

Judge Sylvia H. Rambo of the Federal Middle District Court of Pennsylvania addressed such a scenario under the Federal Rules of Discovery in her recent decision in the case of Johnson v. Predator Trucking, LLC, Civil No. 1:13-CV-1683 (M.D.Pa. Feb. 10, 2014 Rambo, S.J.).

The discovery at issue in this case involved documentation and photographs created within a few months of the accident but prior to any lawsuit being filed.  In her Opinion, Judge Rambo pointed out that some of the photos and documentation were created after defense counsel had been assigned to defend the Defendant trucking company and truck driver in the event litigation did ensue in the future.

In reviewing the Federal Rules of Civil Procedure pertaining to discovery, i.e. Fed.R.C.P. 26, the court granted in part and denied in part the Plaintiff's motion to compel the post-accident investigative materials created and/or secured by the Defendants within the first several months after the occurrence of the accident.

In attempting to set parameters for the application of the work product doctrine to the issue presented, Judge Rambo noted that the key test to be applied is whether it could be reasonably said that the materials at issue were prepared "in anticipation of litigation."

Under a somewhat amorphous standard, the court noted that while litigation did not have to be imminent to render the documents protected from discovery, a "mere possibility" of some future litigation would not be enough to meet the standard for claiming the work-product privilege.

In  applying the standard to this case, Judge Rambo not only emphasized that the Defendants had been assigned defense counsel by the carrier around the time of the creation of the documentation at issue, but also noted that the Defendants had also received word around that time that the Plaintiff had indeed retained personal injury counsel.

The court found some of the documents at issue, including a reenactment of the accident by representatives of the Defendants and certain claims file notes, were not discoverable.   The court did grant the Plaintiff's motion to compel the production of other documentation such as photographs taken by the local investigating police department.

Anyone wishing to review this Opinion, may click this LINK.

Source:  Article: "Accident Reenactment Photographs Protected From Discovery" by Saranac Hale Spencer of The Legal Intelligencer (Feb. 14, 2014).

Judge Robreno of Eastern District of PA Denies Limited Tort Summary Judgment Motion

In its recent decision in the case of Peterman v. Sakalauskas, No. 11-CV-6265 (E.D. Pa. Oct. 10, 2013 Robreno, J.), Eastern District of Pennsylvania Judge Eduardo C. Robreno denied a Motion for Summary Judgment filed by the Defendant in a limited tort case.  

The motion was denied as the court found that genuine issues of material fact existed as to whether the Plaintiff’s alleged injuries were serious enough to breach the limited tort threshold.  

The Plaintiff allegedly sustained multiple permanent disc bulges and sprains to the neck and back.   The Plaintiff asserted that these medical issues resulted in decreased employment opportunities and limitations in her ability to perform a job due to the the fact that she was allegedly unable to use her hands fully.  The Plaintiff also alleged that her social life was impacted as well.  

The Court's Opinion in the Peterman case can be viewed HERE and the companion Order HERE.

 

Source:  "Court Summaries" by Timothy L. Clawges, Pennsylvania Bar News (November 4, 2013).

Pennsylvania Superior Court's Latest Take on the Limited Tort Question

In its most recent take on the limited tort question, the Pennsylvania Superior Court reversed a trial court’s granting of summary judgment in favor of a Defendant on the grounds that there was a genuine issue of material fact as to whether or not the Plaintiff sustained serious injuries as a result of the accident in the case of Cadena v. Latch, 2013 Pa. Super. 266, No. 1891 MDA 2012 (Pa. Super. Oct. 4, 2013)(Gantman, Allen, Mundy, JJ) (Opinion by Mundy, J.).  

In this matter, the Plaintiff alleged that she was diagnosed with eight (8) injuries which her treating doctor related to the subject motor vehicle accident.  The records were also found by the Superior Court to be replete with testimony by the Plaintiff with regards to how her daily life was altered due to her pain and limitations.  Although the Plaintiff had stopped medical treatment in 2008, she offered testimony that she, as of that time, did not have the financial means to continue to treat. 

The Pennsylvania Superior Court noted that the Motor Vehicle Code defines “serious injury” as “[a] personal injury resulting in death, serious impairment of body function, or permanent serious disfigurement.”   The court reiterated that the test focuses not in the injuries themselves, but on how the injuries affect a particular body function. 

It appears that the defense in this matter primarily relied upon the fact that not only had the appellant had ceased medical treatment but that she was declared to have been recovered from all injuries by 2011, which was about 3 ½ years after the subject accident.  

In reversing the entry of summary judgment on the limited tort question, the Pennsylvania Superior Court emphasized that an impairment need not be permanent in order to be serious.   The Court noted that, where questions of fact and testimony remain, the question of whether a Plaintiff suffered a serious injury should be left for the jury.  As such, the trial court’s entry of summary judgment in favor of the Defendant was reversed.  

Anyone desiring a copy of this Opinion may click this LINK.

Judge Williamson of Monroe County Construes Parameters of a Release in MVA Case

In the Monroe County case of Hertzog v. Stafford, LLC, PICS Case No. 13-2524 (C.P. Monroe Co. July 10, 2013 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas ruled that a Plaintiff’s execution of a Release of “any and all claims” in favor of Enterprise Rental Company did not apply to claims that the Plaintiff raised against a Co-Defendant tortfeasor who was driving one of the Enterprise’s company cars when that Co-Defendant rear-ended the Plaintiff. 

According to a summary of the Opinion, the Co-Defendant driver tortfeasor filed Motion for Summary Judgment arguing that the claims against her were barred as the Plaintiff had signed a Release of “any and all claims” against Enterprise and “other persons” arising from the accident.  

Judge David J. Williamson
Monroe County

Judge Williamson rejected the Defendant’s argument and, citing Charles v. Giant Eagle Markets, 522 A.2d 1 (Pa. Super. 1987), reasoned that, generally speaking, unless a Release states otherwise, a Release of one tortfeasor does not serve to discharge other tortfeasors.  

The Court in this matter read the phrase “other persons” as referring to other persons within the employment of the Enterprise Rental Car Company, which the Co-Defendant driver was not.   The trial court also further pointed out that the phrase “other persons” was modified by the language “of and from” as contained in the Release and referring to Enterprise.  

As such, the court denied that Defendant’s Motion for Summary Judgment based upon the Release signed by the Plaintiff.

Anyone desiring a copy of this Opinion may contact the Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427, providing the above PICS Case No. and pay a small fee.  

Source:  “Digest of Recent Opinions.”  The Pennsylvania Law Weekly (October 8, 2013).

Copy of Campbell v. Safeco Decision Secured (Standard of Review of Appeal from Private UM Arbitration)

Monroe County Judge Williamson's Opinion in the case of Campbell v. Safeco on the issue of the standard of review from a privately agreed upon arbitration of an uninsured (UM) motorist claim was recently summarized here.

Judge Williamson held that, in the absence of a formal arbitration agreement, the case should be considered as if the parties submitted the matter to common law arbitration under 42 Pa. C.S.A. §7341.  Under that statute, an arbitrator’s decision could only be set aside if there was “clear, precise, and convincing evidence" that the parties were denied a hearing or that there was fraud, misconduct, corruption, or some other irregularity which caused the rendering of an unjust, inequitable award.  

Attorney Gerard J. Geiger of the Stroudsburg, PA law firm of Newman, Williams, Mishkin, Corveleyn, Wolfe & Fareri was kind enough to send me a copy of the Campbell v. Safeco decision and I thank him for that.  Anyone wishing to review the decision may click this LINK.

Commentary: Given how UIM and UM issues are typically handled in a similar fashion by the courts, one can anticipate a similar result in the context of an attempt to appeal from a privately agreed upon UIM arbitration as well.

Superior Court Reverses Limited Tort Summary Judgment in Non-Precedential Opinion

The Pennsylvania Superior Court recently issued a "non-precedential" Opinion in the limited tort case of Cadena v. Latch, No. 1891 MDA 2012 (Pa. Super.  Sept. 13, 2013 Gantman, J., Allen, J., and Mundy, J.) (mem. by Mundy, J.).

In Cadena, the Superior Court panel reversed the trial court and ruled that the trial court abused its discretion in granting Summary Judgment for the Defendant on the issue of whether the plaintiff's injuries breached the serious injury threshold of the limited tort option. 

According to the opinion, the Plaintiff was diagnosed with eight ailments related to the collision all of which allegedly changed her life.  The record before the court revealed evidence that the plaintiff continued to experience pain in neck, back, legs, along with headaches, could no longer drive, could no longer sit or stand for long periods, missed her children's' activities, and that she had decreased sexual activities. 

The Superior Court also noted that, although medical treatment discontinued years ago, it was allegedly due to lack of insurance. 

Applying the precedent of limited tort cases to the facts of the case before it, the Pennsylvania Superior Court concluded that  reasonable minds could differ as to whether plaintiff sustained a  "serious injury" and, as such, the trial court's entry of summary judgment was reversed.

Anyone wishing to review this "non-precedential" Opinion by the Superior Court in Cadena, may click this LINK.

I send thanks to Attorney Paul Oven of the Moosic, PA law office of Dougherty, Leventhal & Price, as well as Scott Cooper, Esq. of the Harrisburg, PA law office of Schmidt Kramer, for bringing this case to my attention.  I note that Attorney Cooper cited Bill Mabius of the Pennsylvania Association for Justice for publicizing this case as well.

Article Summarizing Recent Trend of Cell Phone/Auto Accident Cases

Here is a LINK to a September 9, 2013 article by Max Mitchell of the Legal Intelligencer entitled "Distracted-Driving Cases Are on the Rise in Pa." which outlines the recent trend of cell phone cases in Pennsylvania and other jurisdictions and ends with a somewhat saucy quote from myself.  Please pardon my language. (And if you have trouble accessing the article online, please let me know).

To review all of the Tort Talk posts on Cell Phone cases, you can always visit Tort Talk at www.TortTalk.com and scroll all the way down the right hand column of the blog to the "Labels" section and click on the Label for "Cell Phone Use."  Here's a quick LINK to that page for your easy reference now.

NJ Case Opens Door (in NJ) For Liability of Text Message Sender in Distracted Driver Auto Accident Cases

Previous cases on cell phone use here in Pennsylvania have focused on the liability of a defendant driver allegedly causing an accident by being distracted from the road ahead by some form of cell phone use (dialing, answering, talking, texting, etc.).

Now comes a New Jersey Appellate Division decision in the case of Kubert v. Best, No. A-1128-12T4 in which the court held that the sender of a text message may be held liable in New Jersey for injuries caused by the distracted driving of the text recipient if the plaintiff can prove that the sender of the text knew or had special reason to know that the recipient would view the text while driving and would be distracted by it.

I usually try to remain objective and keep my opinions out of Tort Talk posts as being irrelevant but I can't resist here.

In Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928), Justice Cardozo defined the concept of proximate causation by stating "the risk reasonably perceived defines the duty to be obeyed and risks imports relation;  it is to another or others within the range of apprehension." 

This Kubert opinion out of New Jersey appears to stretch Justice Cardozo's concept of foreseeability from the Palsgraf decision that we all learned in law school to unrecognizable bounds.

What's next--the ability to sue the telecommunications company for allowing us to all the ability to send text messages?  

How about allowing an injured plaintiff to sue Van Halen because the band knew or should have known that a defendant driver would take his hands off the wheel to play air guitar while blasting "Panama?

Why not then the ability to sue a gas station or a major gas company for selling gas to a defendant driver because the owners of the gas station or gas company knew or should have known that the driver could some day be in a car accident?

More realistically, will the slippery slope someday be extended to allow an injured plaintiff's to sue a passenger in a defendant driver's car because the defendant driver looked over at a passenger while the passenger was talking and, as a result, rear-ended the car ahead?

The above examples are a bit extreme, but where can the line be drawn in a concrete and workable fashion after decisions like this?

(Now you see why I keep my opinions out of it....where else could you find a reference to Justice Cardozo and Van Halen in the same context?)

Anyone wishing to review the decision of the New Jersey Appellate Division in the case of Kubert v. Best may click this LINK.


I send thanks to Paul Oven, Esq. of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Judge Williamson of Monroe County Grants Summary Judgment in Limited Tort Case

In his recent decision in the case of Bachman v. Lassell, PICS Case No. 13-0989 (C.P. Monroe Co. Apr. 15, 2013, Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted summary judgment to a Defendant in a limited tort case after finding that reasonable minds on a jury would not differ on a conclusion that the Plaintiff’s injuries did not result in a serious impairment of a bodily function.  

According to a report on the case, the court noted that, after the accident, Plaintiff did not immediately seek out medical attention.   The day after the collision, the Plaintiff drove himself to the hospital and was treated and released under a diagnosis of a lumbar sprain and contusion.  

Thereafter, an MRI revealed a mild disc herniation and bulge.   The Plaintiff visited a doctor four times over a three month period and attended six sessions of physical therapy.  

The Plaintiff’s deposition testimony indicated that he alleged ongoing neck and back pain with headaches.   The Plaintiff testified that he was restricted in his activities at times, but did not take any medication, and was not disabled.   The evidence established that the Plaintiff was restricted by his doctors from lifting, pushing, or pulling more than 10 pounds for six weeks.  

The Plaintiff worked as a tow truck driver and missed two and half months of work.   He also never returned to an auto repair shop where he had worked periodically.

The court ruled that, despite the Plaintiff’s subjective complaints, there was no objective medical proof provided that the Plaintiff’s injuries amounted to a substantial impairment of a bodily function.   Accordingly, the court granted partial summary judgment barring the Plaintiff from seeking non-economic damages for pain and suffering due to the Plaintiff’s failure to offer evidence of a substantial impairment of a bodily function.  

Anyone desiring a copy of this decision, may contact the Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427, provide the above PICS Case No and pay a small fee.

Source:  “Digest of Recent Opinions,” Pennsylvania Law Weekly (July 9, 2013). 

Plaintiff Permitted to Consolidate Two Separate Motor Vehicle Accident Lawsuits Under Pa.R.C.P. 213

Judge R. Stanton Wettick of the Allegheny County Court of Common Pleas recently allowed the consolidation of two entirely separate motor vehicle accident lawsuits by a same Plaintiff in the case of Jackson v. Drew, No. GD-12-008737 (C.P. Allegheny April 24, 2013 Wettick, J.). 

Judge R. Stanton Wettick
Allegheny County

According to Judge Wettick's Opinion, the Plaintiff was involved in two separate car accidents in Allegheny County.  The Plaintiff asserted that the second accident aggravated his same injuries from the first accident.  The Plaintiff filed separate suits against the drivers.  Both suits were filed in Allegheny County.  

Thereafter, the Plaintiff filed a motion under Pennsylvania Rule of Civil Procedure 213 to consolidate the cases alleging a concern that both defendants in the cases would try to blame the other for any of the injuries asserted.

Judge Wettick granted the motion and consolidated the cases under the rationale that both accidents arose out of a common question of law, i.e., that the common question of fact as to what injuries were caused by which accident. 

In his Opinion, Judge Wettick distinguished the separate standards applicable to permissive joinder of separate claims under Pa.R.C.P. 2229.

Anyone desiring a copy of this decision may click this LINK.

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

Commentary:

For a similar result under Pa.R.C.P. 213, see Scoggins v. Hardy, 10 Pa.D.&C.4th 64 (C.P. York 1991).

For a contrary analysis under an application of the permissive joinder rules under Pa.R.C.P. 2229 pertaining to Complaints, see Kalker v. Moyer, 921 A.2d 21 (Pa.Super. 2007);  Alper v. Yellow Cab Co., 12 Pa.D.&C.3d 355 (C.P. Phila. Co. 1979).

From the above, it appears that, although two separate accidents can not be pled in the same Complaint under Pa.R.C.P. 2229, in certain circumstances, trial courts may use their discretion to consolidate matters under Pa.R.C.P. 213.