Eastern District Court Remands Motor Vehicle Accident Insurance Coverage Question Back to State Court

In the case of Gibbons v. Mid-Century Insurance Company, No. 20-3381 (E.D. Pa. Sept. 24, 2020 Kenney, J.), the Court granted a Motion to Remand a motor vehicle accident insurance coverage Declaratory Judgment action that was removed to federal court. 

The case arose out of a car accident where the minor children witnessed their father’s death as the family crossed a street as pedestrians. The insurance dispute focused on the ability of the children to receive coverage for claims of emotional distress. 

After the case was removed to federal court by the carrier, the Plaintiff filed a Motion to Remand and argued that the case should be remanded because the issue involved in the case has not been decided by the Pennsylvania Supreme Court and was based exclusively upon state law. 

The carrier argued that the District Court should exercise jurisdiction because there was no other parallel state court case pending.

The District Court noted that, if it retained jurisdiction, it would need to determine “whether Pennsylvania law or public policy precludes an insurance policy from defining emotional distress injuries suffered by a bystander witnessing the death of a close relation as derivative of the injury sustained by the relation.” 

The District Court noted that the Pennsylvania courts have not reached a well-settled conclusion on the issue. As such, the Court exercised its discretion under the Federal Declaratory Judgment Act and chose to abstain from jurisdiction. Accordingly, the insured’s Motion to Remand was granted.

Anyone wishing to review this decision may click this LINK.

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

No Claim for Alleged Negligent Handling of Corpse Recognized in Pennsylvania

In the case of Casey v. Presbyterian Medical Center, No. 160203594 (C.P. Phila. Co. April 9, 2019 Cohen, J.), the court confirmed that Pennsylvania law does not recognize a cause of action for alleged psychological injuries stemming from another’s alleged negligent handling of a corpse.  

This matter came before the court by way of a Motion for Summary Judgment.  According to the Opinion, the decedent was transported by ambulance to the Presbyterian Hospital and later passed away.   The decedent’s body was transferred to the hospital morgue, where it was stored in a refrigerated location. 

Four (4) days after the decedent’s death, a hospital representative advised the family that the morgue’s refrigerator had malfunctioned, causing the decedent’s body to rapidly decay. The decedent’s body had to be cremated due to the corpse’s deteriorated state, thereby depriving the decedent’s relatives the ability to hold an open casket funeral, as was their alleged wish in accordance with the religious beliefs.   

None of the relatives of the decedent personally saw the corpse after the refrigerated malfunctioned. However, an unidentified funeral director allegedly took pictures of the body prior to the cremation and showed them to the Plaintiff, one of the decedent’s sons.   That person immediately became nauseous upon seeing the photos and allegedly continued to be affected thereafter.  

The decedent’s relatives filed a negligence cause of action against the hospital and related parties.   The Plaintiffs alleged that the Defendants handled the refrigeration and preservation of the decedent’s corpse in a negligent manner.   Among other claims, the Plaintiffs asserted a claim for negligent infliction of emotional distress.  

As noted above, the Motion for Summary Judgment was granted and, when the Plaintiffs appealed, the court wrote this Rule 1925 Opinion for the benefit of the appellate court.   The court held that, under the case of Hackett v. United Airlines, 528 A.2d 971, 973 (Pa. Super. 1987), Pennsylvania law did not recognize a claim for mental suffering allegedly caused by the tortious interference with a dead body.   Given that the Plaintiff failed to allege a cognizable cause of action, the trial court had entered summary judgment.  

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

Source:  “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 21, 2019). 

Emotional Distress Claim Related to Fears of Inability to Work in Future Ruled Inadmissible

William J. Nealon Federal Courthouse
Scranton, PA

In his recent decision in the case of  Lazar v. Cedar Lake Camp,  3:13 CV 973, 2014 U.S. Dist. Lexis 100112 (M.D. Pa. July 23, 2014 Munley, J), Judge James Munley of the Federal Middle District Court of Pennsylvania granted a Defendant's Motion in Limine to preclude the Plaintiff's proposed testimony/evidence in support of a claim of fear of losing his job due to personal injuries impacting his ability to work.

According to the Opinion, the Plaintiff became stuck on a sliding board that extended into a lake at a camp.  The Plaintiff was instructed by the lifeguard to jump from the slide and into the water.  The water was too shallow and the Plaintiff broke his ankle in the jump. 

The Plaintiff sued the camp and, as part of the claim, produced an expert medical witness who was prepared to testify, in part and in effect, that although the Plaintiff's injuries had not affected his current employment status due to the flexibility of the Plaintiff's employer, if the Plaintiff were to lose this job, he would be a less desirable potential employee for other employers.

The Plaintiff was employed as a senior marketing director of a company.

The defense sought to preclude this testimony on the grounds that it was unduly speculative, irrelevant, and prejudicial.  The defense pointed out that no wage loss claims were presented and that the Plaintiff was incorrectly attempting to have the doctor testify as a vocational expert would.

The Plaintiff countered with the argument that the doctor's evidence supported the Plaintiff's claims for non-economic such as increased anxiety at the dire prospects for re-employment due to his accident-related injuries should he lose his current job.

Judge Munley reasoned that where the plaintiff has not lost his job due to injury and has no wage loss claim, testimony about plaintiff’s alleged emotional distress from fear of losing his job is "too attenuated to be admissible."  Accordingly, the court granted the Motion in Limine and excluded the Plaintiff's proposed vocational evidence from his medical expert in this regard.

Judge Munley's Memorandum in Lazar can be viewed  HERE  and the accompanying Order HERE.

Source of Image of Quote:  www.funny-pictures.picphotos.net



Emotional Distress Injury is a Bodily Injury

Tort Talkers may recall the case of Lipsky v. State Farm previously being summarized here which involved the issue of whether an emotional or mental distress claim by a physically uninjured bystander who witnessed a family member get hit and killed by a car  amounts to a “bodily injury” to trigger coverage under the policy covering the tortfeasor driver’s car.

The Pennsylvania Superior Court previously ruled that such circumstances do meet the definition of a “bodily injury” in this context.

The policy at issue in Lipsky v. State Farm Mutual Automobile Insurance provides coverage for "bodily injury to a person and sickness, disease or death which results from it."

Here is a LINK to the Superior Court’s previous Opinion  (including the concurring and dissenting Opinions of the 2-1 decision), written by then President Judge Correale F. Stevens in the case. 

Judge Stevens is now a member of the Pennsylvania Supreme Court, but did not participate in this matter when it came before the highest court.  As such, there were only six Justices available to review the issue and, yes, they split down the middle.

On January 23, 2014, an evenly split six-justice Pennsylvania Supreme Court issued a per curiam Order indicating that it could not reach a consensus on the matter thereby allowing to stand the previous Superior Court ruling that a negligent infliction of emotional distress claim by plaintiff allegedly arising from the witnessing of a family member being killed by a car is indeed a distinct bodily injury covered by the tortfeasor’s automobile insurance policy.   Anyone wishing to review the Supreme Court's Order may click this LINK.

Source: Article by Zack Needles, "Pa. High Court Stalemate Lets Emotional Distress Claim Stand."  The Legal Intelligencer (1/27/14).

Pennsylvania Supreme Court Splits On Extension of Tort of Negligent Infliction of Emotional Distress

The recent December 22, 2011 split decision by the Pennsylvania Supreme Court in the long-anticipated Opinion in the case of Toney v. Chester County Hospital, 2011 WL 6413948 (Pa. Dec. 22, 2011)(Baer, Todd, and McCaffery, JJ. join in support of affirmance)(Castille, Saylor, Eakin, JJ. join in support of reversal)(Orie Melvin, J. not participating) serves to fuel an argument in favor of the extension of the tort of negligent infliction of emotional distress (NIED).

According to previous precedent on this issue, the courts initially required the tortfeasor to impact the victim physically to justify recovery for NIED (“impact rule”). Thereafter, the requirements to state a NIED claim expanded to allow the victim to be in close proximity of physical impact (“zone of impact liability”).  The tort was then further extended to permit recovery if the victim personally witnessed a tortfeasor physically impact a close relative (“bystander liability”).

The above rules constitute three distinct variations of NIED claims.  Now, with Toney v. Chester County Hospital, comes a fourth variation.

In Toney, the Court granted an appeal  to consider whether a cause of action for negligent infliction of emotional distress exists where the emotional distress results from a “negligent breach of a contractual or fiduciary duty,” absent physical impact or injury.

The Toney case involved a medical malpractice claim in which the Plaintiff alleged that her medical providers had read an ultrasound during the Plaintiff's pregnancy as being normal.  Unfortunately, the Plaintiff's child was later born with several profound abnormalities.  The Plaintiff alleged that the defendants' negligence prevented her from preparing herself for the shock of witnessing her child's birth with such deformities.

The defendants filed preliminary objections in the nature of a demurrer (motion to dismiss) to the Plaintiff's claim for NIED, arguing that the Plaintiff had failed to state a legally cognizable claim upon which relief could be granted.  The issue was then litigated all the way up to the Pennsylvania Supreme Court (the trial court dismissed the Complaint;  the Superior Court reversed the trial court).

After a detailed review of the development of the tort of NIED under Pennsylvania law and in other jurisdictions, the Pennsylvania Supreme Court concluded that it was "appropriate to extend liability for the infliction of emotional distress to a limited species of cases."

More specifically, the Court held "that NIED is not available in garden-variety 'breach of contractual or fiduciary duty' cases, but only in those cases where there exists a special relationship where it is foreseeable that a breach of the relevant duty would result in emotional harm so extreme that a reasonable person should not be expected to endure the resulting distress."

In his Opinion in support of affirmance, Justice Baer also wrote that he (and the two Justices who joined his opinion) "would hold that if an actor has a particular contractual or fiduciary relationship with a victim and it is foreseeable that the actor's carelessness could cause severe emotional harm to the victim, and that harm occurs, a cognizable tort arises which is, in short-form, referred to as a breach of a 'contractual or fiduciary duty' not to inflict foreseeable emotional distress upon a victim."

The Justices in favor of affirmance further concluded that "recovery for NIED claims does not require a physical impact."

Accordingly, the Justices in support of affirmance noted that they would affirm the result of the Superior Court's decision, which reversed the trial court's order sustaining the defendants' preliminary objections and dismissing the plaintiff's complaint with prejudice.  As noted above, three Justices ruled in favor of a reversal, leading to a 3-3 split with Justice Orie Melvin not participating.

That renders this Supreme Court decision a plurality opinion which serves to affirm the Superior Court's decision to recognize the extension of the tort of negligent infliction of emotional distress.

The Justices in favor of a reversal of the Superior Court's decision to allow for an extension of the tort primarily relied upon a public policy rationale in the context of exposing medical providers with yet another potential liability risk in the "complex and risk-laden" medical malpractice arena.


To read the Opinion in support of affirmance written by Justice Baer and joined by Justice Todd and Justice McCaffery click here and here.


To read Justice Todd's concurring Opinion in support of affirmance, click here.


To read Chief Justice Castille's Opinion in support of reversal, click here.


To read Justice Saylor's Opinion in support of reversal, joined by Justice Eakin, click here.


I send thanks to James Beck, Esq. of the Philadelphia office of Dechert LLP and one of the founders and writers of the excellent Drug and Device Law Blog for bringing this case to my attention.

Superior Court Finds Bystander Emotional Distress Claim to be Covered Under Auto Policy Definition of "Bodily Injury"

According to an August 27, 2011 article in The Legal Intelligencer by reporter, Gina Passarella, the Pennsylvania Superior Court recently ruled in a memorandum opinion that a bystander negligent infliction of emotional distress claim fell under the automobile insurance policy definition of a “bodily injury” even though there was no physical injury sustained by the injured party.

In the case of Lipsky v. State Farm Mutual Automobile Insurance Company, PICS Case No. 11-4128 (Pa. Super. September 1, 2011) (unpublished Opinion by Stevens, J.) (Donahue J. concurring; Ford Elliot, P.J. dissenting), a split three (3) judge Pennsylvania Superior Court panel upheld a Philadelphia County trial court decision that the definition of “bodily injury” in State Farm’s automobile insurance policy was broad enough to allow for a negligent infliction of emotional distress claim to be considered as a "bodily injury."

It is noted that the Superior Court did not find that the definition of “bodily injury” in the policy was ambiguous. Rather, the Court found that the definition was wide enough to include claims of emotional harm without physical injury.

The Superior Court also ruled that the two brothers and the father of the victim each had their own separate bodily injury claims rather then all having a single claim based upon the victim’s injuries.  Thus, they were each entitled to pursue the per person limits under the policy separately.

This matter arises out of an incident during which an allegedly intoxicated tortfeasor struck and killed a 17 year old pedestrian in the presence of the pedestrian’s father and two brothers. A lawsuit was brought on behalf of the decedent’s estate, as well as separate claims on behalf of the father and the brothers of the decedent who witnessed the accident. The separate claims of the father and the brothers were based upon a negligent infliction of emotional distress claim.

The Claimants also filed a separate Complaint for a declaratory judgment seeking a declaration that the emotional distress of each Plaintiff constituted a separate “bodily injury” under the State Farm policy allowing that person to recover his own $100,000.00 “each person” liability limits.  As noted above, the Claimants eventually prevailed on appeal in this case before the Superior Court.

I send thanks to Attorney Christine Lezinski of the Scranton law firm of Lenahan & Dempsey for bringing this case to my attention.

Anyone desiring a copy of this Opinion in Lipsky v. State Farm may click this LINK.

Judge Wettick Addresses Parameters of Neurospsych IMEs

I was recently provided with a December 1, 2010 Order and Opinion of Court issued by Judge R. Stanton Wettick of the Allegheny County Court of Common Pleas in the case of Rotunda v. Petruska, No. GD08-018798 (Alleg. Co., 2010, Wettick, J.) in which the Court held that a neuropsychological IME could not be performed in the absence of Plaintiff’s counsel if an objection to that was lodged by the Plaintiff.

Defense counsel had objected that the presence of another persons for the psychological testing would alter the results and may influence the test scores.

Judge Wettick held that the wording of Rule 4010 “is clear” and allows a party the right to have counsel present during the examination. Judge Wettick also allowed the Plaintiff to record the proceeding as allowed by the Rules.


I thank Attorney Andrew L. Braunfeld of the law firm of Masterson, Braunfeld, LLP in Conshohocken, Pennsylvania for forwarding this Opinion to my attention.

Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.

New Citations of Note

Here's the new Westlaw citation for the post-Koken opinionn in the case of Firoozifard v. Krome and State Farm, 2010 WL 2666306, No. C-48-Civil-2009-14369 (Northampton Co. June 21, 2010 Beltrami, J.)(Court denied a third party tortfeasor defendant's motion to sever the third party liability claims from the UIM and UM claims; court also notes that insurance issues can be kept from jury and the task of applying third party credit to determine UIM award can be kept away from jury and handled by the court only after the verdict).




Also, here's the new Atlantic Second Reporter citation for the case of Gormley v. Edgar, 995 A.2d 1197 (Pa.Super. 2010)(The Superior Court panel, consisting of Judge Gantman, Judge Bowes, and Senior Judge Kelly ruled that, where the Plaintiff made allegations in the Complaint that she sustained “anxiety” as a result of the accident, which is a recognized mental health disorder, the Plaintiff put her mental health status at issue. As such, the Superior Court found that the trial court properly ruled that the defense was entitled to discovery of medical records pertaining to the Plaintiff’s pre-accident mental health treatment records.).

Link to Legal Intelligencer Article on Amicus Win

Here's a link to a Legal Intelligencer article covering the Superior Court's decision on my recent amicus win on behalf of the Pennsylvania Defense Institute:

http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202457749775&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20AM%20Legal%20Alert&cn=TLI_AM_LegalAlert_20100507&kw=Panel%20OKs%20Disclosure%20of%20Pre-Injury%20Mental%20Health%20Records%20Premium%20Access%20Required&hbxlogin=1


Quote too harsh? Naaaahhh.



The facts of each case are different. No specific results are implied for future cases. Descriptions of awards in previous cases are no guarantee of future results and should not create any expectations that my firm or I can achieve similar results in another case.

Federal Middle District Court Judge Caputo Reviews Value of Emotional Distress Claims

In the recent case of Dee v. Borough of Dunmore, Slip Copy, 2010 WL 1626908 (M.D.Pa. April 21, 2010 Caputo, J.), U.S. Federal District Court Judge A. Richard Caputo of the Middle District of Pennsylvania granted a defendant's motion to reduce a plaintiff's emotional damages award and found that the plaintiff, who had no "long-lasting effects" from a brief period of emotional trauma is not entitled to anything more than $50,000 in compensation for that injury.

The case stemmed from a suit by a plaintiff who alleged that he was improperly suspended without any hearing from his post as an assistant fire chief when borough officials allegedly incorrectly concluded that the plaintiff lacked the necessary qualifications for the position.

Judge Caputo noted that the evidence showed that the plaintiff suffered emotional distress and an elevated blood pressure "for at least a few days" following the suspension.

The judge reviewed other similar emotional distress cases and noted that, where there is some emotional distress without lasting effects established in the case, the average award allowed by the courts was approximately in the range of $50,000.

Turning back to the facts of the Dee case, Judge Caputo found that the jury's award of $150,000 was "shocking to the judicial conscience," particularly where there was no evidence that the plaintiff changed in any lasting way, where it was confirmed that the plaintiff's blood pressure returned to a normal range within a few days, and where the plaintiff was allowed to continue with his employment with the fire department after only nine (9) days on suspension.

In addition to the Westlaw citation above, a copy of this case can be secured, for a small fee, by contacting the Pennsylvania Law Weekly's Instant Case Service at 1-800-276-7427 and giving them the PICS Case No. 10-1762.

Amicus Curiae Position Argued Before Superior Court on behalf of Pennsylvania Defense Institute

On January 12, 2010, I traveled to Philadelphia to present and argue the amicus curiae position of the Pennsylvania Defense Institute in the case of Gormley v. Edgar.

The issue presented was whether the Philadelphia County Court of Common Pleas correctly ruled that the defense should be entitled to discovery of a pre-accident mental health consultation medical record pertaining to a plaintiff who had pled emotional distress claims as a result of a motor vehicle accident.

The Plaintiff argued that they were only pleading ordinary emotional distress claims attendant with a personal injury action. The defense counsel, fellow PDI member, Beth Carter, Esquire, and I argued that, once the Plaintiff put her mental health condition in issue in the case with claims of severe, disabling and indefinitely continuing mental distress and anguish, the discovery of the pre-accident record should be allowed.

The Superior Court panel, consisting of Judge Gantman, Judge Bowes, and Senior Judge Kelly took the matter under advisement. Their decision is anticipated in the near future. I will keep you advised on this matter.

Amicus Curiae Brief on Discoverability of Plaintiff's Prior Mental Health Records

As noted previously in this blog, I authored an amicus curiae Brief at the request of the Pennsylvania Defense Institute on the issue pending before the Pennsylvania Superior Court of whether a plaintiff's prior mental health records are discoverable when the plaintiff alleges emotional distress and mental anguish claims in a personal injury matter.

Philadelphia Court of Common Pleas Judge Allan L. Tereshko ruled that such evidence was indeed discoverable in the case of Gormley v. Edgar and the plaintiff took the issue up on appeal. Briefs have been submitted and the parties await an argument date from the Superior Court.

For the amicus defense position on this all-important issue, asserting that such evidence is discoverable as ruled by the trial court judge, you can view the amicus curiae Brief by clicking on the following link:

http://www.jdsupra.com/post/documentViewer.aspx?fid=d6e1dc5d-d0de-4c33-bbd3-899332af58ee

Pennsylvania Supreme Court Grants Petition for Appeal to Address Two Important Strict Product Liability Issues

I thank James Beck, Esquire of the Philadelphia office of the Dechert, LLP law firm for advising me of the Pennsylvania Supreme Court's May 27, 2009 Order granting a Petition for Allowance of Appeal in the case of Schmidt v. Boardman Company, et al., 2009 WL 1471119 (Pa. 2009). I note that Attorney Beck is the co-writer of an excellent legal blog entitled Drug and Device Law found at http://www.druganddevicelaw.blogspot.com/. I invite you to check out his blog.

In the Schmidt case, various plaintiffs filed strict products liability claims against successor corporations that purchased the assets of the original manufacturer of an allegedly defective fire truck that was involved in an accident that injured a number of persons.

More specifically, as the fire truck was responding to a call, unbeknownst to the firemen, there was a fire hose dangling from the side of the truck. Along the way the nozzle of the fire hose ran under a parked car, became taut when it got caught. The force was so great that it lifted the parked car as the nozzle broke free. The nozzle then careened like a missile and struck three plaintiffs standing nearby, killing one of them. Some additional plaintiffs, who did not sustain any physical injuries from this accident, brought emotional distress claims under a theory that they were bystanders who witnessed injuries to their close relatives.

After a jury found the fire department 50 percent liable and the successor corporations (who purchased the assets of the original manufacturer of the fire truck) 50 percent liable under an approximately $4.5 million dollar verdict, the successor corporations filed an appeal to the Superior Court.

At the Superior Court level, the court acknowledged the general rule that, with respect to successor liability, when one company sells or transfers all of its assets to another company, the purchasing or receiving company is not responsible for the debts and liabilities of the selling company simply because it acquired the seller's property. See Schmidt v. Boardman Company, et al., 958 A.2d 498, 504 (Pa.Super. 2008).

However, the Superior Court upheld the trial court's application of the product line exception to the rule of successor non-liability under which exception the plaintiff may recover from the successor if a number of factors are proven that essentially work together to show that the successor corporation acquires all or substantially all of the assets of the original company and continues essentially the same manufacturing operation as the selling company that originally made the product. Id. at 504-505.

The Superior Court also rejected the successor corporation's appellate argument that the recoveries allowed on the claims for infliction of emotional distress at the trial level should not have been allowed because the underlying tort alleged was under a strict product liability theory and not a negligence theory. The corporation more specifically argued that the emotional distress plaintiffs had not alleged or established any physical injury and that, in the absence of any physical injury, Pennsylvania law does not permit a recovery for emotional distress damages under a theory of strict product liability.

The Superior Court found this argument to be devoid of merit. The Court noted that the courts of Pennsylvania have long abandoned the "impact rule" previously required for a plaintiff to recover under an emotional distress claim. Id. at 518. The Superior Court noted that the law has been extended to allow for a bystander to recover so long as there is a close personal relationship between the physically injured party and the bystander who witnessed the injury.

In rejecting the defendant's argument, the Superior Court emphasized that the law has always focused on the nature of the relationship between the victim of the injury and the bystander rather than the type of the underlying tort. In this case, both the trial court and the Superior Court felt that under the horrific facts of a mother struck by the same projectile that killed her daughter after which the mother watched "her daughter's life drain from her body," the emotional distress sustained "is the inescapable byproduct of any underlying tort which caused the injury and thus, should be compensated." Id. at 519 [emphasis added]. This same analysis was applied to the other emotional distress plaintiff who witnessed the severe physical injuries sustained by her sister.

As such, the Superior Court affirmed the rulings of the trial court in favor of the plaintiffs. Now the successor corporation defendants' appeal to Supreme Court has been granted. In its May 27, 2009 Order, the Supreme Court noted that the following issues would be considered:

(1) Whether the plaintiff must prove a physical injury in order to be entitled to recover under a strict product liability theory?

(2) Whether the product-line exception to the general rule against successor liability should be a part of Pennsylvania's strict product liability jurisprudence?

(3) If the product line exception is recognized as part of Pennsylvania's strict product liability jurisprudence, whether the exception should be formulated to strictly require proof of the following before successor liability can be imposed: (1) the successor corporation purchased all or substantially all of the assets of the manufacturer of the product at issue; (2) the successor undertook essentially the same manufacturing operation as the manufacturer of the product alleged to have caused the plaintiff's injuries and then continued to manufacture the same product line; and (3) the transaction between the successor and the manufacturer of the product at issue caused the destruction of the plaintiff's remedies against the manufacturer?

The parties were also ordered by the Supreme Court to address whether the second issue noted above has been waived.

Given the strong wording of the Superior Court's opinion and the compelling rationale that both the trial court and Superior Court offered in support of their respective decisions, it would appear likely that the Supreme Court will affirm the decisions of the lower courts on these issues (assuming they have not been deemed to have been waived).