Judge Amesbury of Luzerne County Orders Severance and Stay of Post-Koken Bad Faith Claim

In the post-Koken case of Denisco v. USAA, No. 2248-CV-2018 (C.P. Luz. Co. May 21, 2018 Amesbury, J.), the court granted a UIM carrier’s Motion to Sever and Stay a Plaintiffs’ Bad Faith Claims from the Plaintiffs’ Breach of Contract Claims.  

Judge William H. Amesbury
Luzerne County

The court further ordered that discovery and trial on the breach of contract claims would proceed separately and conclude before the commencement of any discovery with respect to the separate bad faith claims.  

 The court additional ordered that, upon completion or settlement of the breach of contract claims, a scheduling conference would be held to discuss a schedule for discovery, dispositive motions, and trial with respect to the bad faith claims.

Anyone wishing to review a copy of this Court Order without Opinion may click this LINK.

I send thanks to Attorney Lindsay B. Andreuzzi and Attorney Marni Berger of the Philadelphia office of Post & Schell for bringing this Order to my attention.

Another Luzerne County Post-Koken Decision in Favor of Consolidation During Discovery (But Leaving the Door Ajar for Bifurcation Later at Trial)

In a recent February 11, 2016 Order without Opinion in the case of Rhoades v. Johnson and Erie Insurance Company, No. 9659 - CV - 2015 (C.P. Luz. Co. Feb. 11, 2016 Amesbury, J.), Judge William H. Amesbury of the Luzerne County Court of Common Pleas denied the Defendant UIM carrier's Preliminary Objections/Motion to Sever filed in response to a Post-Koken Complaint.

This matter arose out of a motor vehicle accident during which the Defendant tortfeasor driver was allegedly driving under the influence.

The Defendant UIM carrier filed Preliminary Objections asserting a misjoinder of negligence claims against the alleged tortfeasor and UIM breach of contract claims under a single Complaint.  The carrier combined the Preliminary Objections with a Motion to Sever pursuant to Pa.R.C.P. 213 asserting, in part, that it would be prejudicial for the UIM carrier to have to proceed through the same jury trial with the inflammatory facts associated with a Co-Defendant accused of a DUI and facing punitive damages.

Judge William H. Amesbury
Luzerne County
 

Following the trend in Luzerne County, Judge Amesbury denied the Preliminary Objections of the UIM carrier Defendant but noted in his Order that "Defendant Erie Insurance Company retains the right to file a Motion to Sever with the Trial Judge."

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

Reassignment of Luzerne County Judges Announced (Effective January 1, 2014)

Luzerne County Courthouse
Wilkes-Barre, PA
 

According to an October 21, 2013 Scranton Times Tribune article by Bob Kalinowski entitled "Luzerne County Judges Getting New Assignments," the Luzerne County Court of Common Pleas announced a planned reassignment of judges to be effective come January 1, 2014 for the civil, criminal, juvenile, and family courts. 

Here is a LINK to the article.

To the extent, that you may not be able to access the article online (because you have to pay to view, or otherwise), I note that the article reports that Judge Lesa Gelb and Judge Richard Hughes will now focus on civil matters rather than civil and criminal matters as they have in the past.  President Judge Thomas F. Burke, Jr. will also continue to handle civil matters.

Judge William H. Amesbury has been appointed as administrator of the juvenile court but will also continue to handle civil matters.

Judge Michael T. Vough will continue to handle criminal and civil matters.

No other judges were identified as being assigned to take part in civil matters after January 1, 2014.

Judge Amesbury of Luzerne County Addresses Liability of a Car Valet Service

In his recent decision in the case of Moranko v. Downs Racing, L.P. d/b/a Mohegan Sun at Pocono Downs, No. 2011-CV-10312 (C.P. Luz. Co. Jan. 3, 2013 Amesbury, J.), Judge William H. Amesbury of the Luzerne County Court of Common Pleas reviewed the issue of the responsibilities owed by a valet service of an establishment with respect to returning a motor vehicle to an allegedly visibly intoxicated person.

According to the opinion, the Plaintiff’s decedent arrived at a Pennsylvania casino and utilized the valet service on the premises. The Court’s Opinion noted that, while no one apparently saw the decedent consume any alcoholic beverages on the premises, at approximately 7:30 p.m. that evening, the decedent was allegedly seen by other patrons in a bar area of the casino in an allegedly visibly intoxicated state.

By 8:02 p.m., the decedent requested his car from the valet service. The Opinion notes that the decedent’s vehicle was delivered the decedent at approximately 8:11 p.m. The decedent was then involved in a fatal one-vehicle accident after leaving the casino premises.

In the Complaint filed on behalf of the decedent, there was a Dram Shop claim alleging service of alcohol to a visibly intoxicated person and a negligence claim based upon the delivery of the decedent’s vehicle to him while he was allegedly visibly intoxicated.

This case came to the Court by way of a Motion for Summary Judgment filed by the defense.

After applying the facts to the applicable law, the Court entered summary judgment in favor of the Defendant on all claims.

With respect to the Dram Shop claim, the Court noted that there was no direct evidence in the records to support the allegation that the Defendant had served the decedent with alcoholic beverages while he was visibly intoxicated.

In this regard, the Court noted that the decedent was on the premises for a relatively short period of time and that there were other unrelated vendors on the premises who could have sold alcoholic beverages to the decedent.

The Court disagreed with the Plaintiff’s argument that there was sufficient circumstantial evidence to allow this case to proceed to trial. The Court stated that, under the circumstances, any finding by the jury in favor of the Plaintiff under the record before the Court would be based upon mere speculation and conjecture.

With regards to the claim of negligence against the valet service, the Court stated that there was no Pennsylvania law that supported an argument that the valet service owed a duty to the decedent as alleged by the Plaintiff.

In its analysis, the Court reviewed the law of bailment and stated that, any refusal by the Defendant to return property in a mutual bailment, such as was present in the valet service arrangement, could possibly constitute a conversion. Accordingly, summary judgment was entered in favor of the Defendant on this claim as well.

Anyone wishing to review Judge Amesbury's decision in Moranko may click this LINK.

I send thanks to Attorney David Heisler of the Scranton office of Cipriani & Werner for bringing this case to my attention.


UPDATE:  To review the Tort Talk Post on the Superior Court Opinion affirming the trial court's decision in this matter and to see the Link to the Pennsylvania Supreme Court Order denying the Petition to Appeal to that Court, click HERE.

Judge Amesbury of Luzerne County Addresses Post-Koken Bad Faith Discovery

In a November 6, 2012 detailed Order, Judge William H. Amesbury addressed an insurance carrier's motion to sever and stay bad faith discovery in the Post-Koken UM/Bad Faith combined claim of Schuckers v. Penn National, No. 9080 - CV - 2011 (C.P. Luz. Co. Nov. 6, 2012 Amesbury, J.)

Judge William H. Amesbury
Luzerne County

In so ruling, Judge Amesbury cited Gunn v. Automobile Ins. Cos. of Hartford, 971 A.2d 505 (Pa.Super. 2009) for the proposition that, since the trial of the UM claim would be by jury and the trial of the bad faith claim would be by a bench trial (under state law), there is a severance of the claims for trial purposes by operation of law.

In terms of discovery on the UM and Bad Faith claims, Judge Amesbury took a page out of the playbook recommended by Judge Wettick in the trial decision in Gunn, supra., and held that, since there was a bad faith claim presented, the carrier's values and its opinions and conclusions on the strengths and weaknesses of the uninsured motorist claim would not be disclosed in an unredacted form until after jury deliberations begin on that initial claim. Judge Amesbury also noted that, at that point, the Plaintiff could request a stay of the trial of bad faith claim if time was needed to review the carrier's file and develop the case further.

I send thanks to Attorney Stephen Fendler of the Kingston, PA office of Fendler & Associates, P.C. for advising me of this decision.

Anyone desiring a copy of this Order in Schuckers v. Penn National may contact me at dancummins@comcast.net.

Recklessness Allegations in a Premises Liability Case

In his recent September 27, 2011 Memorandum and Order in the case of Maloney v. Fidelity Deposit and Discount Bank, No. 11-Civil-2033 (C.P. Lacka. Co. Sept. 27, 2011, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas again addressed the propriety of allegations of gross, wanton, and reckless conduct in personal injury Complaints.

Tort Talkers may recall that I recently summarized an Opinion by Judge Nealon on this issue in the context of automobile accident matters in the case of Freethy v. Goike, No. 2011 - CV - 530 (C.P. Lacka. Co. Sept. 9, 2011 Nealon, J).

This Maloney case concerned a trip and fall and a lawsuit by a tenant against a property owner.

The Maloney case more specifically arose out of a trip and fall that occurred on May 29, 2009 in an unlit interior stairway leading to the second floor of a commercial building owned by the Defendants, Fidelity Deposit and Discount Bank, and Fidelity D&D Bancorp, Inc. [“Fidelity”]. The Plaintiff alleges that he was injured when he was caused to fall while walking down the dark stairway.

The Plaintiff alleged that he formerly owned the subject building but that the bank had pursued mortgage foreclosure litigation against him. The bank prevailed and, at one point, directed the Plaintiff to remove his remaining property from the premises.

The Plaintiff contended that the only way he could access his property was by way of a darkened staircase. Prior to the incident, Fidelity had allegedly caused the utilities, including the electricity, to be terminated at the premises, which left the stairway dark and not lit by either natural or artificial lighting.

The Plaintiff asserted in his Complaint that, although Fidelity was aware of the darkened condition of the stairway, the bank did not provide the Plaintiff with any means of lighting the stairway in order to safely use the stairway to remove his property from the premises.

As such, the Plaintiff alleged in his Complaint that Fidelity had acted with gross, wanton, recklessness, careless, and negligent conduct by requiring the Plaintiff to use the subject stairway when Fidelity knew it was in a dangerous and darkened condition.

Fidelity filed Preliminary Objections in the nature of a demurrer to the Complaint seeking to strike the Plaintiff’s references to gross, wanton, and reckless conduct. Fidelity asserted that the Complaint filed to allege specific facts in support of these allegations. The Plaintiff responded by asserting that allegations of wanton conduct, reckless conduct, and gross negligence involved conditions of the mind which could be asserted generally in the Complaint.

After reviewing the case law on the issues presented, including again relying upon (as he did in the Freethy decision) the Superior Court Opinion in the case of Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009), app. denied, 989 A.2d 914 (Pa. 2010), and after accepting as true the allegations and reasonable inferences from the facts in the Complaint as required by the standard of review, Judge Nealon held that the allegations of the Plaintiff’s Complaint were sufficient to allow the claims of gross, wanton, and reckless conduct to proceed on into discovery.

Judge Nealon noted that whether or not the Plaintiff would be able to produce sufficient evidence to support those allegations could be determined during the course of discovery.

The Court also noted that, in the event that discovery failed to yield sufficient factual support for these allegations, Fidelity had the right to move to strike the allegations from the action or attempt to secure a stipulation from the Plaintiff to remove such allegations later in the proceedings.

As such, the Court denied the Defendant’s demurrer to the allegations of wanton and reckless conduct in the Maloney case.

While it appears that these types of general allegations may now be allowed to proceed, at least in Lackawannna County, it may be advisable for the parties to focus at least a portion of their discovery efforts on any facts to support any claim of recklessness on the part of the defendant.  If a plaintiff is unwilling to stipulate such allegations out at the conclusion of discovery, a motion for summary judgment may prove necessary in order to close the door on any effort by the plaintiff to make a claim for punitive damages at trial based upon these allegations.

Legal research for law in support of such a summary judgment motion could begin here on Tort Talk with a review of decision by Judge William Amesbury of the Luzerne County Court of Common Pleas outlining the necessity of facts to support such claims of wanton and reckless conduct.  That Tort Talk post can be viewed here.


Anyone desiring a copy of Judge Nealon’s Opinion in the case of Maloney v. Fidelity Deposit and Discount Bank (premises liability case) or Freethy v. Goike (auto accident case) may conduct me at dancummins@comcast.net.

Judge Amesbury of Luzerne County Addresses Future Medical Expenses Claims in Auto Accident Case

In his April 15, 2011 Opinion in the case of Ferraro v. Knies, 101 Luz. Reg. Reports 94, No. 9543-Civil-2008 (Luz. Co. April 15, 2011, Amesbury, J.), Luzerne County Court of Common Pleas Judge William Amesbury addressed the issue of the handling of future medical expenses claims in automobile accident civil litigation.

In this matter, the limited tort Plaintiff was injured as a result of a motor vehicle accident. After a trial, a Luzerne County jury returned a verdict in favor of the Plaintiff awarding damages totaling $200,000.00. Part of that award consisted of a $140,000.00 in damages for future medical expenses.

The defense relied upon 75 Pa. C.S. §1722 of the Pennsylvania Motor Vehicle Financial Responsibility Law to argue that the Plaintiff’s recovery of future medical expenses should be precluded based upon the fact that the Plaintiff was using health coverage that was provided by her current employer to pay for her medical expenses.

Plaintiff’s counsel initially argued that §1722 was not applicable because the Plaintiff’s healthcare provider was either an ERISA Plan or an HMO, which exempted it from the statutory preclusion of recovering medical expenses and gave the health insurance provider a right of subrogation which would justify and permit a recovery of an award for future medical expenses in this matter.

The Court noted, however, that it was subsequently determined that the healthcare plan was neither an ERISA plan nor an HMO and, therefore, Plaintiff’s argument was reduced to the determination of whether the future medical expenses were precluded under the argument that they were “paid or payable” as that term is defined under §1722.  Section 1722 provides that were an injured party's medical expenses are "paid or payable" by certain entities or carriers, they are not recoverable in motor vehicle accident cases.

At an evidentiary hearing on whether the Plaintiff's future medical expenses would be "payable," the Plaintiff testified that she incurred out-of-pocket expenses of $40.00 per treatment because the healthcare plan treated that expense as a co-pay. The Plaintiff additionally produced documents and testimony to confirm that there was an annual $7,500.00 deductible before payment for the healthcare services would be covered by the health insurance.

In his Opinion, Judge Amesbury noted the Plaintiff’s treating physician gave testimony that provided a range as to expected future medical expenses. The jury was also instructed that the Plaintiff had an additional 40 year life expectancy according to the accepted statistical tables. As such, Judge Amesbury noted that the $140,000.00 awarded by the jury for future medical expenses divided by 40 years was approximately $4,500.00 per year.

Judge Amesbury went on to note that, based upon the testimony provided by the Plaintiff at the evidentiary hearing regarding her co-pay and the deductible of $7,500.00, the Plaintiff’s out-of-pocket payments would exceed the future projections of the jury. Accordingly, Judge Amesbury held that accepting a jury’s verdict would not result in a windfall or a double recovery to the Plaintiff.

Judge Amesbury found that “the future medical damage award of $140,000.00 [was] purely compensatory, not providing a windfall or dual recovery and specifically not “payable” so as to be precluded by §1722 of the Motor Vehicle Financial Responsibility Law.” See Opinion at p. 103.

Although the Court allowed the Plaintiff’s jury award of future medical expenses to stand, the Court rejected the Plaintiff’s request for delay damages on that portion of the verdict. Having not been provided with any legal authority to support delay damages on an award for future medical expenses, Judge Amesbury declined to award the same.

He did, however, allow for delay damages on the jury’s award for future pain and suffering as that has previously been permitted by the Pennsylvania Superior Court in the case of Gross v. Johns-Manville Corp., 600 A.2d 558 (Pa. Super. 1991), appeal denied, Fiberboard Corp. v. Gross, 613 A.2d 559 (Pa. 1992).



Anyone desiring a copy of Judge Amesbury’s Opinion in the case of Ferraro v. Knies may contact me at dancummins@comcast.net.



For more analysis on this future medical expenses issue in another Tort Talk post, including a review of decisions by Judge Terrence Nealon of Lackawanna County and Judge James Munley of the Federal Middle District Court of Pennsylvania, click here.