Deposition of a UIM Claims Rep in a Luzerne County Post-Koken Case Allowed

The Luzerne County Court of Common Pleas
 

In his recent March 9, 2016 Order without opinion in the case of Cairl v. Chiogna and Nationwide, No. 2015-CV-08159 (C.P. Luz. Co. March 9, 2016 Burke, J.), Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas granted a Plaintiff's motion to compel the deposition of a UIM carrier's claims representative in a Post-Koken case.  The court did circumscribe the parameters of the deposition in the Order by noting, for example, that the Plaintiff could not inquire into privileged areas such as the mental impressions, conclusions or opinions of the representative regarding the merit or value of a claim or defense.

Anyone wishing to review a copy of this Order may contact me at dancummins@comcast.net.

I send thanks to Attorney Neil O'Donnell of the O'Donnell Law Offices for bringing this decision to my attention.

Commentary:   This decision of Judge Burke is notable in that Judge Burke had twice previously denied Motions to Compel Depositions of Claims Representatives in context of post-Koken cases by Order only.   See e.g. Garret v. Griffin, No. 17274-Civil-2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.); Krzynefski v. Bish, No. 16643-Civil-2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.).  

Also, there are other Luzerne County Court of Common Pleas decisions allowing for claims representative depositions in post-Koken matters, including a decision by Judge William H. Amesbury in the case of Paulewicz v. State Farm, No. 10655-Civil-2009 (C.P. Luz. Co. Feb. 1, 2010 Amesbury, J.), as well as the decision of Boyle v. Progressive, No. 8815-Civil-2014 (C.P. Luz. Co. Nov. 3, 2015 Amesbury, J.).  

 

Judge Burke of Luzerne County Allows Punitive Damages Claims To Proceed in Cell Phone(s) Distraction Auto Accident Case

In his recent Luzerne County decision in the case of Gugliotti v. O'Rourke, No. 2012-CV-15133 (C.P. Luzerne Co. 2014 Burke, P.J.), President Judge Thomas F. Burke, Jr., by Order only, denied a Defendant's Preliminary Objections to Plaintiff's allegations of reckless conduct in support of compensatory and punitive damages claims in the Complaint concerning the Defendant's use of not one, but two, cell phones at the time he rear-ended the vehicles ahead.

According to the briefs filed in the matter, the police report indicated that the defendant driver allegedly admitted at the scene that "both of his cell phones began ringing and that he leaned over to answer them...[he] failed to see the stopped traffic ahead of him due to cell phone distraction and he struck the rear of Unit #2."

The defense asserted that the pleadings of the Complaint failed to conform to rule or law of court in that they included scandalous or impertinent allegations.  The defense also asserted that the allegations failed to have sufficient facts plead in support of the claims presented.

The defense asserted in its brief that punitive damages were not supported where the claims did not establish that the defendant was not talking on his cell phones at the time of the accident but merely stated that they had begun to ring.  The defense also noted that, in any event, use of a cell phone during the course of the accident in and of itself was insufficient to support allegations of reckless conduct or a claim for punitive damages.

The Plaintiff asserted in his brief that the conduct alleged of a defendant driver being distracted by leaning over to answer two cell phones that were simultaneously ringing and crashing into a car ahead and causing a four vehicle chain reaction accident was the type of conduct the cases to date have suggested may be sufficient to allow the claim to proceed.

As noted, Judge Burke overruled the defendant's Preliminary Objections.  Anyone wishing to review the Court's simple Order of denial may contact me at dancummins@Comcast.net.


I send thanks to the prevailing Plaintiff's attorneys Joseph Price, Esq. and Colleen Kearney, Esq. of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

No Habla Espanol?

The Luzerne County Courthouse

 

According to the May 16, 2014 edition of the Luzerne Legal Register, the Luzerne County Court of Common Pleas has issued an Order amending Luzerne County Local Rule of Civil Procedure 1018.1 to require that any notice to defend attached to any Complaint filed by a Plaintiff or any Complaint filed by a Defendant against an Additional Defendant shall begin with a form Notice to Defend provided which sets forth the required language in both English and Spanish.  To review a copy of the proposed new form Notice to Defend required in cases in the Luzerne County Court of Common click this ENLACE, por favor.  

 

According to the May 2, 2014 Order of Court, this Rule will go into effect thirty (30) days after the date of publication of this amendment in the Pennsylvania Bulletin.  As of the writing of this blog post, I am not sure when that publication will occur).  

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.

Luzerne County President Judge Burke Grants Protective Order Against Deposition of UIM Claims Rep in Two Post-Koken Cases

On October 4, 2013, President Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas issued an Order in the case of Garrett v. Griffin and Erie Ins. Exchange, No. 17274 of 2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.) granting the Motion of Erie Insurance Company for a Protective Order against the Plaintiff's request for a deposition of that UIM carrier's claims representative in a Post-Koken automobile accident case.  The prevailing defense attorney in that case was Rick Polachek of the Wilkes-Barre law firm of Polachek & Clark.

On the same date, President Judge Burke, Jr. issued an Order in the separate Luzerne County case of Krznefski v. Bish and State Farm, No. 16643 of 2012 (C.P. Luz. Co. Oct. 4, 2013 Burke, J.) granting the Motion of State Farm Mutual Automobile Insurance Company for a Protective Order against the Plaintiff's request for a deposition of that UIM carrier's claims representative in a Post-Koken automobile accident case.  The prevailing defense attorney in that case was Lee Ullman of the Reading office of the Forry Ullman law firm.

Anyone wishing to secure a copy of these Orders may contact me at dancummins@comcast.net.

Judge Burke of Luzerne County Grants Summary Judgment in Premises Liability Case

Hon. Thomas F. Burke, Jr.
Luzerne County President Judge

In his recent Opinion in the case of Purdy v. Downs Racing, L.P. d/b/a Mohegan Sun at Pocono Downs, No. 15369-C of 2010 (C.P. Luz. Co. Dec. 4, 2012 Burke, P.J.), President Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas granted summary judgment in favor of the Defendant in a premises liability case arising out of an alleged slip and fall.  

In this matter, the Plaintiff alleged that she slipped and fell while located on the premises owned and maintained by the Mohegan Sun Casino.  The Plaintiff allegedly slipped and fell on a puddle of clear liquid approximately 12 inches in size.  

After discovery, the defense filed a Motion for Summary Judgment asserting that the Plaintiff had failed to meet her burden of proof on the issues presented.   More specifically, there was allegedly no evidence to establish how the puddle was created or how long it had existed prior to the Plaintiff’s fall.  As such, the defense asserted that there was no evidence of any actual or constructive notice on the part of the Defendant of any allegedly dangerous condition.   The court agreed. 

In his Opinion, Judge Burke confirmed that there was no evidence presented by the Plaintiff as to how long the puddle existed prior to the incident.  

The court also stated that the Plaintiff’s allegation that the puddle consisted of residual cleaning solution that had leaked from a carpet cleaning machine stored in a housekeeping closet near where she fell was nothing more than speculation.  The court noted that, while the liquid the Plaintiff allegedly fell on was clear, evidence was presented that the solution that the machine used was tinted.   There was also no evidence of any history of leaks with respect to the brand new machine.

Judge Burke held that, without any evidence that the equipment stored in the closet caused the puddle in question, the Plaintiff’s allegations were without support in the records and the Plaintiff was therefore unable to establish a breach of a legal duty.  

Judge Burke noted that the record before the court “at best demonstrated the mere existence of a harmful condition in a Defendant’s premises and the mere happening of an accident due to such a condition, which does not evidence a breach of the duty of the Defendant’s duty of care or raises a presumption of negligence.”   Accordingly, summary judgment was entered in favor of the Defendant.

Anyone wishing to review Judge Burke's decision in the Purdy case may contact me at dancummins@comcast.net.

Judge Burke of Luzerne County Dismisses Cross-Claim by UIM Defendant Against Tortfeasor Defendant in Post-Koken Case

Judge Thomas F. Burke, Jr. of the Luzerne County Court of Common Pleas recently sustained a tortfeasor defendant’s preliminary objections (filed by me) and dismissed a cross-claim for contribution and/or indemnification filed by the underinsured motorist (UIM) carrier defendant against the tortfeasor defendant in the post-Koken case of Emery v. Culver and Nationwide, No. 6764 – CIVIL – 2010 (C.P. Luz. Co. Sept. 28, 2011 Burke, J.).

Regular readers of Tort Talk may recall that I previously reported on the Post-Koken issue of whether or not the underinsured motorist (UIM) carrier defendant could assert a cross-claim against the tortfeasor defendant seeking the recovery on the UIM carrier’s potential subrogation rights (i.e., if the UIM carrier pays out money to the injured party, the UIM carrier has a right to recover the amount of that payment from the tortfeasor who caused the plaintiff’s injuries).

Judge Linda Wallach Miller of the Monroe County Court of Common Pleas addressed this issue her post-Koken decision of Bridgeman v. Cruz and Nationwide,, PICS Case No. 11-0238 (Monroe Co., Jan. 7, 2011, Wallach, Miller, J.). In Bridgeman, the court sustained the tortfeasor Defendant’s Preliminary Objections and struck the Co-Defendant UIM carrier’s cross-claim for contribution or indemnification after finding that such claim was not yet ripe for judicial review.

Judge Wallach Miller concluded that under the UM/UIM policy, the carrier did not have to pay the injured party until a determination was made that the Plaintiff’s damages exceeded the liability policy limits. The Court also noted that, under the UM/UIM policy, Nationwide retained the right to recover any amounts it had to pay to its injured party insured only after Nationwide had actually compensated the insured for damages in excess for the tortfeasors’ applicable liability limits.

The Court found that the UIM carrier may not recover on any claim for contribution or indemnification until the Plaintiff was awarded damages in excess of the liability policy and, therefore, Nationwide’s cross-claim was found to be procedurally and substantively improper because it was not ripe for judicial review under the ripeness doctrine.

In addition to citing Judge Miller’s on point decision in Bridgeman in support of the preliminary objections filed in the Emery case before Judge Burke, I also cited cases asserting that the cross-claim was improper because the UIM carrier and the tortfeasor defendants could not be considered to be joint tortfeasors (the claim against the UIM carrier is in contract, and the claim against the tortfeasor sounds in negligence). See Sehl v. Neff and State Farm, No. 3438 EDA 2009, 2011 WL 2990902 (Pa.Super. July 25, 2011 Olson, Freedburg, Colville, JJ.)(opinion by Freedburg); Bingham v. Poswistilo, Ritz, and Erie Ins., No. 10 - CV - 6020 (Lacka. Co., April 8, 2011, Nealon, J.).

Anyone desiring a copy of Judge Burke’s Order without Opinion and/or my preliminary objections and supporting brief in the Emery v. Culver case may contact me at dancummins@comcast.net.


Disclaimer: Past results by Foley, Cognetti, Comerford, Cimini & Cummins are no guarantee of future results and each case must be handled on its own merits.