Superior Court Affirms Trial Court Rulings in MVA Case Precluding Introduction of Criminal Acts by Defendant

In the non-precedential decision by the Pennsylvania Superior Court in the case of Bazzano v. Spade, No. 99 WDA 2024 (Pa. Super. Dec. 23, 2024 McLaughlin, J., King, J., and Beck, J.) (Mem. by McLaughlin, J.), the Pennsylvania Superior Court affirmed the trial court’s decisions on evidentiary rulings during the course of a motor vehicle accident trial in which the jury awarded the Plaintiff $7,500.00 in damages.

According to the Opinion, the Defendant struck the Plaintiff with his vehicle while the Plaintiff was walking through a parking lot. After the accident, in a companion criminal case, the Defendant had pled guilty to simple assault and recklessly endangering another person, which were misdemeanors of the second degree.

Among the issues raised on appeal after this personal injury trial was the Plaintiff’s desire to introduce into evidence the Defendant's guilty plea from the criminal case during the course of the civil jury trial on the personal injury claims.

Along these lines, the Plaintiff noted that the trial court had allowed the Plaintiff to amend the Complaint to assert claims of recklessness and punitive damages.

The Pennsylvania Superior Court ruled that the trial court had properly precluded the references to the Defendant’s criminal charges. In part, the court noted that the Defendant admitted liability for the happening of the accident in this civil litigation and that, therefore, the only issues present in the civil trial were the issues of damages. 

The court also noted that, given that the Defendant had pled guilty to misdemeanors, as opposed to any felonies, the use of the criminal convictions for the purposes of establishing reckless behavior in the civil trial was properly precluded by the trial court. 

The Superior Court otherwise noted that any relevance that the conviction would have had as a statement against interest by the Defendant, would have been outweighed by its prejudicial effect. 

Accordingly, the Superior Court ruled that the trial court did not abuse its discretion in keeping out this guilty plea.

The Superior Court also affirmed the trial court’s refusal to admit into evidence the Defendant’s prior DUI convictions. The Plaintiffs attempted to utilize this evidence to establish the Defendant’s habit and pattern of recklessness. The Plaintiffs argued that the Defendant's recklessness in this case was in conformity with his past actions demonstrating recklessness while driving.

The Plaintiff was relying upon Pa.R.E. 406 which provides that evidence of a person’s habit may be admitted to prove that, on a particular occasion, the person acted in accordance with that habit.

The Superior Court found that the trial court properly denied the Plaintiff’s request to admit the Defendant’s two (2) prior DUI convictions to demonstrate of recklessness. The Superior Court noted that there was no evidence that the Defendant was under the influence of alcohol at the time of the subject accident. The Superior Court agreed that the evidence was not relevant and the prejudicial impact of that evidence outweighed any potential relevance.

Based on these reasons, and other reasons, the Superior Court affirmed the trial court’s rulings. The judgment was affirmed.

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


I send thanks to Attorney Krista M. Corabi, Esquire of the Pittsburgh office of the Summers, McDonnell Hudak, Guthrie & Rauch law firm for bringing this case to my attention.

Source of image:  Photo by Kindel Media on www.pexels.com.

Company That Charged For Work Event At Which Alcohol Was Served Can't Be Held Liable Under Social Host Liability Theory

In the case of Klar v. Dairy Farmers of America, Inc., No. 29 WAP 2022 (Pa. Aug. 22, 2023 Wecht, J.), the Pennsylvania Supreme Court revisited precedents from over a half of a century that have imposed civil liability arising from the provision of alcohol to visibly intoxicated persons with respect to persons and entities licensed to engage in the commercial sale of alcohol while those precedents have also limited the liability of non-licensees and “social hosts.”

In this matter, Pennsylvania Supreme Court affirmed the decisions of the lower courts that held that an organization which hosted an event at which alcohol was provided, but which organization was not a liquor licensee, could not be held liable for injuries caused by a guest who had become intoxicated at the event and was later involved in a motor vehicle accident.

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

Source: Article - “Company That Charged For Work Event Can’t Be Held Liable for Guest’s Drunken Driving, Says Pa. High Court, By: Riley Brennan of the Pennsylvania Law Weekly (Aug. 24, 2023).

Civil Litigant Permitted to Assert Fifth Amendment Right Against Self-Incrimination in a Personal Injury Case

In the case of Whitcher v. Zimmerman, No. 2022-C-0339 (C.P. Leh. Co. Oct. 25, 2022 Varricchio, J.), the court issued a detailed Order denying a Plaintiff’s Motion to Compel and upholding a Defendant’s right to assert his Fifth Amendment privilege against self-incrimination.

According to the Order, this case involved a motor vehicle accident with possible allegations of driving under the influence. The Defendant driver had previously pled guilty to the charge of careless driving in connection with the accident.

The Plaintiff asserted that, as such, the Defendant driver could not face any further criminal charges.

In response, the Defendant driver asserted that it was certainly possible for him to face additional criminal charges related to the accident based upon any newly discovered or disclosed evidence that could come out during the course of discovery during this civil litigation matter.

In ruling on the Motion, the court noted that the statute governing when a subsequent prosecution is barred by a former prosecution for a different offense, contains certain exceptions.  One exception was when the offense of which the Defendant was formerly convicted or acquitted was a summary offense or a summary traffic offense.

Given this set of facts, the court applied the applicable standard of review and noted that it was not “perfectly clear” that the Defendant driver would not possibly face additional criminal charges related to the accident based upon his provision of information in discovery. 

As such, the court found that the Defendant driver’s assertion of the Fifth Amendment right against self-incrimination was reasonable. Therefore, the court denied the Plaintiff’s Motion to Compel the Defendant driver to respond to certain discovery requests.

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

Source of image:  Photo by Anthony Garand on www.unsplash.com.

Dram Shop Act Found to Pre-Empt Common Law Negligence Claims Against Liquor Licensees Unless Unless Service to Visibily Intoxicated Person Proven

In the case of Murray v. Frick, No. 2021-CV-1254 (C.P. Leh. Co. May 2, 2022 Caffrey, J.), the court reasoned that, given the prior precedent defining §4-497 of the Pennsylvania Dram Shop Act as a limiting provision that protects a licensee from liability to third party unless the patron was visibly intoxicated, the court found that the provision operated to preempt common law negligence claims asserted by the Plaintiff against the Defendant liquor licensee. As such, the court sustained the Defendant’s Preliminary Objections in part.

According to the Opinion, the Plaintiff alleges that he was injured in a motor vehicle accident that occurred when his vehicle was struck by a tortfeasor Defendant who ran a red light. The Plaintiff asserted that, prior to the accident, the tortfeasor Defendant driver had been drinking alcohol at two (2) different bars. As such, the Plaintiff asserted common law negligence claims against the owners of the bars.

The Defendants filed Preliminary Objections asserting that the allegations in the Plaintiff’s Complaint seeking to hold the Defendant liquor licensees as liable in common law negligence were legally insufficient as a matter of law. The Defendant company relied upon §4-497 of the Pennsylvania Liquor Code, that is, the Dram Shop Act, to assert that a claim against a licensee under the Dram Shop Act is the exclusive remedy available to a person who has been injured as a result of the sale of alcohol to a visibly intoxicated person.

The court in this matter found no appellate guidance on the issue of whether §4-497 preempts a common law negligence claim and noted a split of authority among the Courts of Common Pleas on the same. 

However, in reviewing the Pennsylvania Superior Court case of Detweiler v. Brumbaugh, in which that court described §4-497 as a liability limiting provision, this court reasoned that the provision should be construed as protecting a licensee from liability to third parties unless the patron at issue was served while visibly intoxicated.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Aug. 23, 2022).

Source of image:  Photo by Tembela Bohle on www.pexels.com.

 

PA Law Found To Apply to NJ Accident Under Choice of Law Analysis; Punitive Damages Claim in DUI Case Allowed to Proceed

In the case of Hutchinson v. Millet, No. 22-CV-1166 (C.P. Lacka. Co. Aug. 8, 2022 Nealon, J.), the court addressed choice of law questions and punitive damages issues in response to Preliminary Objections raised in a motor vehicle accident case.

According to the Opinion, this matter involved a fatal motor vehicle accident that occurred in New Jersey. 

The estate of the Lackawanna County decedent, who was killed in a New Jersey automobile accident while a passenger in a vehicle operated by a Lackawanna County resident and owned by the Defendant driver’s Lackawanna County employer, commenced this lawsuit against the deceased Defendant driver’s estate and his employer seeking to recover compensatory and punitive damages based upon alleged negligent and reckless conduct of the Defendant driver in allegedly causing the fatal collision while allegedly driving under the influence of alcohol, cocaine, and prescribed medications.

The deceased driver’s estate filed Preliminary Objections seeking to dismiss the punitive damages claims on the grounds that New Jersey law prohibits the recovery of punitive damages from a deceased tortfeasor’s estate, and also restricts an employer’s vicarious liability for punitive damages to those instances where the employer specifically authorized, ratified, or participated in the employee’s reckless conduct.

The Defendant driver’s estate alternatively argued that, even if Pennsylvania law applied, the punitive damages claims should be dismissed since the deceased Defendant driver was allegedly chargeable with nothing more than ordinary or gross negligence and such claims were insufficient to support a punitive damages claim.

In response, the Plaintiff’s estate asserted that Pennsylvania law governed and that Pennsylvania law allowed for the punitive damages claim.

Judge Terrence R. Nealon
Lackawanna County

After applying a detailed choice of law analysis, Judge Nealon ruled that Pennsylvania law controls the punitive damages issues raised by the Defendant’s Preliminary Objections.

Judge Nealon went on to note that, under Pennsylvania law, the estate of a tort victim may recover punitive damages from a deceased tortfeasor’s estate for causing an accident while operating a vehicle allegedly while impaired with alcohol or drugs. The court also noted that the employer of an allegedly intoxicated or impaired driver may be found vicariously liable for punitive damages even if that employer did not direct or ratify that reckless conduct.

As such, the court overruled the Defendant’s Preliminary Objections in the nature of a demurrer that was asserted against the punitive damages claims.

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

Employer Who Furnishes Alcohol At An Employee Event Considered to be a Social Host -- No Liability for Later DUI Accident By Employee

In the case of Klar v. Dairy Farmers of America, Inc., No. 1280 WDA 2020 (Dec. 17, 20221 Pa. Super. Olson, J., Nichols, J., and Musmanno, J.) (Op. by Olson, J.), the Pennsylvania Superior Court affirmed the entry of judgment on the pleadings in favor of the Defendant.

For a summary of the trial court's opinion that was affirmed (and a Link to that decision), please see this Tort Talk Blog post HERE.

The trial court had entered judgment against the Plaintiff and in favor of an employer in a case in which the trial court had ruled that an employer who collects contributions for a social event was still considered to be a social host with respect to any liability claims under the Dram Shop Act. Based upon this ruling, the trial court dismissed the Plaintiff’s negligence claims against the employer.

According to the Superior Court's Opinion, the Pennsylvania was injured in a motor vehicle accident when the vehicle operated by the Defendant driver struck the Plaintiff’s motorcycle.

The Defendant driver was an employee of Dairy Farmers of America. That employer had sponsored a golf outing and encouraged its employees to attend. The employees made a monetary contribution to offset the cost of the greens fees, food, and alcohol. After collecting the contributions from the employees, the employer paid for the event in its entirety.

The Plaintiff alleged that, at the event, the Defendant driver consumed an amount of alcohol that raised his blood alcohol level beyond the legal limit. The Defendant driver then proceeded to drive and was involved in the accident with the Plaintiff.

The Plaintiff sued the Defendant driver as well as his employer under negligence claims. The employer filed a Motion for Judgment on the Pleadings arguing that it was not liable under the Dram Shop Act because it was a social host.

The Pennsylvania Superior Court ruled that an employer who furnished alcohol at a sponsored employee social event was not a licensee or other party subject to per se Dram shop liability but was instead a social host who could not be held proximately liable for an employee causing an alleged drunk driving accident.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Jan. 4, 2022).

Source of image:  Photo by Steven Shircliff on unsplash.com.

Latest Pennsylvania Superior Court Decision on the Admission of Intoxication Evidence in a Personal Injury Matter

In the case of Livingston v. Greyhound Lines, Inc., No. 318 EDA 2017 (Pa. Super. April 29, 2019 Colins, J., Lazarus, J., Kunselman, J.) (Op. by Colins, J.), the court affirmed the entry of a judgment in favor of the Plaintiff following post-trial motions in a motor vehicle accident matter. 

On appeal, the appellate court noted that evidence of alcohol or drug consumption by a person involved in an accident is admissible in a personal injury action only where there is evidence that reasonably shows intoxication and unfitness to engage in the activity at issue at the time of the accident.   

The Superior Court noted that even an admission by the tortfeasor of admitted alcohol or drug use is subject to being excluded from evidence where the Plaintiff fails to present evidence of chemical testing sufficient to show intoxication, or where the Plaintiff fails to present any other evidence of impairment. 

On the issue of punitive damages, the court reiterated a general rule of law that such damages can be awarded against the Defendant only if the Plaintiff shows that the Defendant had a subjective appreciation of the risk of harm to which the Plaintiff was exposed and that the Defendant acted, or failed to act, in conscious disregard of that risk of injury.   The court noted that the fact that a Defendant knew of a possibility of accidents and did not undertake additional safety measures is not sufficient in and of itself to support a claim for punitive damages.  

Conversely, the court also noted that, in a case of a defendant who does not admit to knowledge of a danger, punitive damages may still be pursued where other circumstantial evidence can prove that the defendant had subjective knowledge of the risk of harm.  

In this matter, there is no evidence in the record to show that a corporate defendant consciously disregarded the risk of driver drowsiness. However, the court noted that a corporate defendant can be vicariously liable for the reckless conduct of an employee without proof that the employer’s conduct itself satisfied the standard of punitive damages.  

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.

Punitive Damages Allowed to Proceed in Case Involving Alleged Driving While Intoxicated

In the case of Yzkanin v. Hammerjax, LLC, No. 18-CV-2260 (C.P. Lacka. Co. March 1, 2019 Nealon, J.), the court addressed Preliminary Objections seeking to strike allegations of reckless, willful, and wanton conduct along with a claim for punitive damages in a Dram Shop liability action.  

According to the Opinion, this matter arose out of an accident that occurred after the Plaintiff was a patron at the Defendant’s tavern and the tavern’s employees allegedly continued to serve the Plaintiff alcohol even though he was allegedly visibly intoxicated due to the fact that the Plaintiff was allegedly drinking excessively for an extended period of time.  

In other words, the Plaintiff Yzkanin alleged that he was drinking excessively on the night on question and then got into an accident after he left the tavern and then sued the tavern for continuing to serve him alcohol when he was visibly intoxicated. 

According to the Opinion, this case was also consolidated with the claim of the other Plaintiff who was in the other vehicle that was involved in the accident with Plaintiff Yzkanin.   That Plaintiff also sued the tavern Defendants under a Dram Shop action and made claims for recklessness and punitive damages.  

In his Opinion, Judge Nealon cited to the law that holds that punitive damages are appropriate when an individual’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct.   

Wanton or reckless conduct was further defined to refer to those instances when an actor has intentionally completed an act of unreasonable character in disregard of a risk known to him or a risk so obvious that he must have been aware of it and so great as to make it highly probable that harm would result.   The court additionally referred to the law that a mere showing of negligence, or even gross negligence, will not support a claim for punitive damages.  

After applying the law to the facts alleged in the Plaintiff’s Complaint, the court overruled the Defendant’s Preliminary Objections filed against the Plaintiff’s allegations of wanton, willful, and reckless conduct and also overruled the Preliminary Objections to the claims for punitive damages.   In so ruling, the court noted that the Defendants remained capable of testing the viability of the punitive damages claims later by way of a Motion for Summary Judgment.  

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

I send thanks to Attorney Dale G. Larrimore of the Philadelphia law firm of Larrimore & Farnish, LLP.  

Reckless Conduct Allegations and Punitive Damages Claims Allowed to Proceed in DUI Civil Litigation

In the case of Santiago v. Yates, No. 2018-CV-4504 (C.P. Lacka. Co. Feb. 14, 2019 Nealon, J.), the court reviewed various Preliminary Objections filed by a Defendant in a motor vehicle accident case.  

In particular, the Defendant filed Preliminary Objections against the Plaintiff’s allegations of the Defendant’s alleged reckless operation of his vehicle while under the influence of alcohol and a controlled substance along with the Plaintiff’s request for punitive damages.   

The Plaintiff additionally alleged that she was not bound by her Limited Tort selection and instead was entitled to Full Tort coverage under an exception to the rule pertaining to a conviction of the defendant driver for driving under the influence of alcohol and/or a controlled substance.  

The Defendant demurred to the claim for punitive damages on the grounds of legal insufficiency.   The Defendant also requested a dismissal of the Plaintiff’s allegations of recklessness due to an alleged lack of factual support for those allegations. 

The Defendant also moved to strike any references to the Defendant’s driving under the influence of alcohol and a controlled substance on the basis that those allegations allegedly contained “scandalous and impertinent matter.”

Judge Terrence R. Nealon
Lackawanna County

In denying these Preliminary Objections, Judge Nealon noted that the Pennsylvania appellate and trial courts have “uniformly recognized the viability of a punitive damages claim against a motorist who causes an accident and personal injury while driving under the influence of alcohol or a controlled substance.   Reviewing and accepting the Plaintiff’s allegations as true in this matter as required by the standard of review, the court denied the Defendant’s various Preliminary Objections.  

The court also noted that the allegations of driving under the influence assumed a greater significance in this case given that the Defendant’s conviction in the criminal courts transformed the Plaintiff’s Limited Tort status to Full Tort status under the applicable law.  

As such, the court additionally rejected the claim that the allegations at issue amounted to scandalous and impertinent allegations.   To the contrary, the court found that the allegations pertaining to the Defendant’s driving under the influence were sufficient to support the Plaintiff’s claims for punitive damages based upon the Defendant’s alleged reckless conduct.  

As stated, the Defendant’s Preliminary Objections were overruled in their entirety. 

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

ARTICLE: Precedent Has a Way of Repeating Itself: A Year-End Review of Cases, Trends

The below article of mine recently appeared in the December 14, 2017 edition of the Pennsylvania Law Weekly and is republished here with permission:

 

Precedent Has a Way of Repeating Itself: A Year-End Review of Cases, Trends
 

By Daniel E. Cummins
Pennsylvania Law Weekly
December 14, 2017

Another year of litigation has come to a close. Given that precedent has a way of repeating itself here’s a look back at notable decisions from the past year.

Elements of Bad Faith Claim

In its decision in the bad faith case of Rancosky v. Washington National Insurance, No. 28 WAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court, for the first time, considered the elements of a bad faith claim under 42 Pa.C.S.A. Section 8371.

In Rancosky, the Supreme Court adopted the two-part test enunciated in the case of Terletsky v. v. Prudential Property & Casualty Insurance, 649 A.2d 680 (Pa. Super. 1994), which provides that a plaintiff must present clear and convincing evidence of: that the carrier did not have a reasonable basis for denying benefits under the policy, and that the carrier knew of or recklessly disregarded its lack of a reasonable basis.

The Pennsylvania Supreme Court went on to note that evidence of a motive of self-interest or ill will was not a prerequisite for a plaintiff to prevail on a statutory bad faith claim.

Dead Man’s Rule

The Pennsylvania Superior Court provided its latest take on the Dead Man’s Statute, 42, Pa. C.S.A. 5930, in the case of Davis v. Wright, 2017 Pa. Super. 48 (Pa. Super. Feb. 27, 2017 Shogan, Ott, J.J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

In this matter, arising out of a fatal motor vehicle accident, the Pennsylvania Superior Court found that Dead Man’s Statute was not waived by the defendant’s participation in discovery when no depositions or Interrogatories were completed.

The court additionally noted that this defense under the Dead Man’s Statute did not need to be raised as an affirmative defense in a new matter pursuant to Pa. R.C.P. 1030 in order to be preserved.

Moreover, the court otherwise noted that the issues of negligence in this automobile accident case could not be established by the testimony of a police officer who did the accident report but who had no independent recollection of the incident.

Evidence of Intoxication

In the case of Coughlin v. Massaquoi, No. 32 EAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court declined to adopt a bright-line rule of predicating the admissibility of a person’s blood alcohol content (BAC) on the existence of independent corroborating evidence of intoxication.

The Coughlin case arose out of a motor vehicle versus pedestrian accident.

The Pennsylvania Supreme Court held that the admissibility of BAC evidence remains within the trial court’s discretion based upon the general rules of admissibility found in the Pennsylvania Rules of Evidence 401-403, and the trial court’s related assessment of whether the evidence establishes the party’s unfitness to act in light of the alleged intoxication.

Use of Powerpoint at Trial

The use of visually stimulating powerpoint exhibits at trial has become the norm in the digital age.

In the case of W.C. v. Janssen Pharmaceuticals, 2017 Pa. Super. 356 (Pa. Super. Nov. 13, 2017, Panella, Ransom, Fitzgerald, J.J.) (Op. by Panella, J.), the court ruled that allowing counsel to use powerpoint slides as a visual aid during closing argument was not an abuse of discretion by the trial court. This was particularly so given that the court found that the slides did not misrepresent the evidence presented at trial.

The Superior Court also held that the powerpoint slides were permissible in the closing argument even though the slides had not been admitted into evidence.

Notably, the court also held that opposing counsel had no right to review the materials used in an opponent’s closing argument prior to the presentation of the same.

Cellphone Use

Another recurring issue in civil litigation matters is the extent to which cellphone use by a defendant during the course of an accident can support a claim for punitive damages.

In a detailed order issued by Judge Kimberly J. McFadden of the Northampton County Court of Common Pleas in the case of Figueroa v. Ferraira, No. C-48-CV-2017-833 (C.P. Northampton Co. June 8, 2017, McFadden, J.), the court allowed a claim punitive damages to proceed beyond the preliminary objections stage in a case where the Plaintiff alleged that the defendant rear-ended the plaintiff’s vehicle at a red light at an excessive rate of speed and while texting.

The court noted that the defense retained the right to revisit the issue at the summary judgment stage should it be determined that the plaintiff had not produced evidence in support of this claim.

Attorney-Client Privilege

The attorney-client privilege and the attorney work product doctrine were both reviewd in the case of BouSamra v. Excela Health, 2017 Pa. Super. 66 (Pa. Super. March 13, 2017, Bowes, Stabile, Musmanno, J.J.) (Op. by Bowes, J.). The Pennsylvania Superior Court affirmed the granting of a motion to compel the production of a memorandum prepared by counsel for the defendant that was shared with an outside public relations firm.

The court found that the attorney-client privilege for that memorandum was waived when the client shared the Memorandum with the outside public relations firm. It was noted that the public relations firm was not a part of the team offering legal advice.

The court also found that the work product protection was waived for the same reason.

In its opinion, the Pennsylvania Superior Court stated that the waiver doctrine analysis is essentially the same for both the attorney-client privilege and the work product privilege.

Limited Tort

In the case of Vetter v. Miller, 2017 Pa. Super. 64 (Pa. Super. March 10, 2017) (Ransom, J., Ford Elliot, P.J.E., Stephens, P.J.E.) (Op. by Ransom, J.), the court affirmed the trial court’s decision that a plaintiff’s insomnia did not amount to a serious impairment of a body function for a limited tort the plaintiff under the facts presented.

This decision was also notable for the Pennsylvania Superior Court’s analysis of what types of motor vehicle accident related criminal charges may be admissible in a subsequent civil case.   The court noted that all motor vehicle code violations are not of equal gravity.

For example, the court noted that, while evidence of a conviction of driving while intoxicated may be admissible if supported by ample evidence of intoxication, a guilty plea of driving with a suspended license was only a summary offense that should not have been admitted in the court below.

Post-Koken Issues

A number of recurring issues in post-Koken automobile accident matters continued to be litigated across the commonwealth of Pennsylvania.

There continues to be an almost equal split of authority amongst the trial courts across Pennsylvania on whether a post-Koken litigation should be severed or bifurcated into two separate matters, one being the third party negligence action and the second being the breach of contract UIM litigation.

The trend in the non-bad faith cases appears to be to allow the cases to remain together during the course of discovery but there remains a split of authority on whether the cases should be bifurcated for purposes of trial.

To date, other than the Pennsylvania Superior Court case of Stepanovich v. McGraw and State Farm, which touched upon the issue but did not definitively decide the issue, there has been no appellate guidance on the issue of severance or bifurcation. The Stepanovich decision suggests, but did not decide, that post-Koken claims could be tried together.

In post-Koken cases involving bad faith claims, there is still no appellate guidance on severance or bifurcation and stay orders relative to the bad faith claims. There is a split of authority among the trial courts, but the federal courts seem to be trending toward denying motions to sever and stay bad faith claims.

A Look Ahead into 2018

As this year comes to an end, there are also important rule changes and potential important decisions to anticipate in 2018.

One decision to keep an eye out for would be the one in the Pennsylvania Supreme Court case of Gallagher v. Geico Indemnity, No. 87 WAL 2017 (Pa. Aug. 8, 2017). The court is expected to address issues pertaining to the validity of household exclusions and stacking issues with respect to automobile insurance policies.

In the case of Nicolaou v. Martin, No. 58 MAL 2017 (Pa. Aug. 18, 2017), the Pennsylvania Supreme Court issued an order agreeing to hear the appeal of a woman whose case against medical providers over an alleged misdiagnosis of her Lyme disease was dismissed partly because of Facebook posts indicated that she knew that she was suffering from the disease for years before filing the suit.

The court has agreed to address the more specific issue of whether the plaintiff’s claims met an exception to the discovery rule related to the statute of limitations where the plaintiff “did not and was financially unable to, confirm [the defendant’s] negligent misdiagnosis until final medical testing confirmed she had Lyme disease.”

A split Pennsylvania Superior Court panel previously ruled in this case that the plaintiff’s claims were barred by the two-year statute of limitations.

Civil litigators should also be aware that the Public Access Policy of the Unified Judicial System of Pennsylvania is about to go into effect and that they may face sanctions if they do not comply with the mandates of this new policy pertaining to the filing of documents with the court.

By way of background, with the Pennsylvania state court systems gradually moving over into the digital age, the Administrative Office of Pennsylvania Courts (AOPC) has taken steps to address the need to protect individuals from identity theft and from disclosure of private information.

Effective Jan. 8, 2018, the Public Access Policy of the Unified Judicial System of Pennsylvania will require attorneys to file a certification, with every document filed with the court, that confirms that sensitive, private, and confidential information has been redacted from the document.

The certification that shall accompany each filing is required to be in substantially the following form: “I certify that this filing complies with the provisions of the Public Access Policy of the Unified Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than nonconfidential information and documents.”

Also, if confidential information is contained within the court filing, or in documents attached to the court filing, other certification documents will have to be filed as well. More information on this new policy may be found on the AOPC’s website or at a number of CLE courses being held around the commonwealth.

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, can be viewed at www.TortTalk.com.  Attorney Cummins also provides Mediation Services at www.CumminsMediationServices.com. Contact him at dancummins@comcast.net.

 

Number of Recurring Auto Accident Litigation Issues Addressed in Federal Middle District Court Decision

In the case of Knecht v. Balanescu, No. 4:16-CV-00549 (M.D. Pa. Oct. 30, 2017 Mehalchick, Mag. J.), is notable for decisions by the court on many common Motion In Limine issues arising out of a motor vehicle accident litigation.   Such notable decisions include the following:

 

- There was no intentional destruction of relevant documents to justify a finding of spoliation. 

- A human factors expert is not qualified to testify about accident reconstruction.

- Prior drunk driving tickets were excluded as unduly prejudicial where alcohol had nothing to do with the accident in question.   However, other driving tickets were admissible as relevant to the negligent hiring claim. 

- Defendant’s expert testimony concerning the effect of Plaintiff’s blood alcohol content, although not supported by other exigent evidence, was found to be sufficiently thorough to be admissible.  

- Since the Plaintiff was seeking to recover for permanent injuries, evidence of prior drug abuse was found to be relevant on the issue of life expectancy.  

- Evidence of the Plaintiff’s cell phone use and texting was sufficiently close to the accident as to be admissible.

- Plaintiff’s traffic citations with respect to the accident were found to be admissible under the Federal Rules of Evidence.  

- Where the Plaintiff is claiming injuries that are the same as he claimed in a prior dissimilar accident, the prior accident is admissible as relevant to the issue of causation of those injuries without regard to the similarity of the facts of the separate accidents.   

 

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 and the writer of the Drug and Device Law blog for bringing this case to my attention.   

 

 

Pennsylvania Supreme Court Declines to Adopt Bright-Line Rule For Admissibility of BAC Evidence

In the case of Coughlin v. Massaquoi, No. 32 EAP 2016 (Pa. Sept. 28, 2017), the Pennsylvania Supreme Court declined to adopt a bright-line rule of predicating the admissibility of a person's blood alcohol content (BAC) on the existence of independent corroborating evidence of intoxication.

Rather, the Supreme Court held that the admissibility of BAC evidence is within the trial court's discretion based upon the general rules of admissibility found in the Pennsylvania Rules of Evidence 401-403, and the trial court's related assessment of whether the evidence establishes the party's unfitness to act.

This case arose out of a motor vehicle versus pedestrian accident.

The Court's Majority Opinion, Concurring Opinion, and Dissenting Opinion can be viewed at this LINK.

I send thanks to Attorney Joseph Hudock of the Pittsburgh office of Summers, McDonnell, Hudock & Guthrie for bringing this case to my attention.

Pennsylvania Superior Court Rules that Insomnia is Not a Serious Injury in Limited Tort Context

In the case of Vetter v. Miller, 2017 Pa. Super. 64 (Pa. Super. March 10, 2017) (Ransom, J., Ford Elliot, P.J.E., Stephens, P.J.E.) (Op. by Ransom, J.), the court affirmed the trial court's decision that a Plaintiff's insomnia did not amount to a serious impairment of a body function for a limited tort Plaintiff under the facts presented.  

This decision was also notable for the Pennsylvania Superior Court’s analysis of what types of motor vehicle accident related criminal charges may be admissible in a subsequent civil case.   The court noted that all motor vehicle code violations are not of equal gravity.  

For example, the court noted that, while evidence of a conviction of driving while intoxicated may be admissible if supported by ample evidence of intoxication, a guilty plea of driving with a suspended license was only a summary offense that should not have been admitted in the court below.

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

I send thanks to Attorney James A. Beck from the Philadelphia office of the Reid Smith law firm for bringing this decision to my attention.