Judge Mannion of Federal Middle District Court Rules in Favor of Consolidated Discovery in Post-Koken UIM Claim

In the case of Alers v. Progressive Preferred Ins. Co., No. 3:25-CV-01371-MEM (M.D. Pa. Aug. 7, 2026 Mannion, J.), Judge Malachy E. Mannion denied a Defendant’s Motion to Sever and Stay Discovery in a post-Koken breach of contract and statutory bad faith case arising out of a motor vehicle accident.

In this case, the Defendant UIM carrier sought to sever and stay all bad faith discovery from the breach of contract claim. The Defendant carrier argued that, through the bad faith claim, the Plaintiff was seeking in discovery the production of privileged information and the carrier’s opinion work product which would prejudice the Defendant carrier in relationship to the ongoing UIM claim.

The court addressed the request for severance under F.R.C.P. 21.

Judge Malachy E. Mannion
Pa. Middle District

In reviewing the applicable factors under this analysis, Judge Mannion found that the claims raised in both the breach of contract claim and the bad faith claim were intertwined. The court also concluded that severance would not promote judicial economy. The court additionally found that there would be no prejudice to the Defendant if the Motion to Severe was denied. 

In terms of any discovery issues with regards to allegedly privileged insurance company documents, the court noted that such concerns could be addressed through incamera review of discovery materials in response to any Motion to Compel rather than through severance or bifurcation or any stay Orders, which would only serve to prolong consideration of various discovery issues.

Overall, the court found that the Defendant carrier had not met its burden in establishing that severance of the claims or stay of discovery with respect to the bad faith claim were warranted. As such, the Defendant’s Motion was denied and this Post-Koken federal court case involving UIM breach of contract and bad faith claims was allowed to proceed through discovery in a consolidated fashion.

Anyone wishing to review this case may click this LINK.


I send thanks to Attorney Jesse B. Hallinan and Attorney Thomas W. Munley of the Scranton law firm of Minora, Krowiak, Munley & Batyko for bringing this case to my attention.

This decision has been added to the Post-Koken Scorecard on the Tort Talk Blog.  The Post-Koken Scorecard is a compilation of many of the Post-Koken decisions handed down by the Pennsylvania state and federal courts since 2009.  The list does not reference all of the cases but is still a comprehensive compilation.

That Scorecard can always be freely accessed by going to www.TortTalk.com, scrolling down the right hand column of the blog to "Post-Koken Scorecard" and clicking on the date under that title.  For now, here is a quick LINK to the Post-Koken Scorecard on the Tort Talk Blog compiled by Daniel E. Cummins, Esquire.

Court Sees Former Prisoner Plaintiff's Civil Rights Claims as Plausible and Allows Them to Proceed Forward

In the case of Walton v. Lackawanna County, No. 3:25-CV-02461-MEM (M.D. Pa. July 7, 2026 Mannion, J.), the court denied a municipality’s Motion to Dismiss a former prisoner Plaintiff’s civil rights claims.

According to the Opinion, the Plaintiff was pursuing §1983 civil rights claims, along with other disability claims, relative to allegations that, during a period of incarceration at the Lackawanna County Prison, the Plaintiff was prevented from securing the small plunger-like devices he allegedly required to remove his scleral contact lenses each day for his condition of keratoconus.  The Plaintiff alleged that, due to the fact that he was allegedly prevented from securing the plunger devices, he could not remove his scleral contact lenses, and suffered injuries to his eyes as a result.

After the filing of the Complaint, the municipality filed a Motion to Dismiss the Plaintiff’s various claims, including claims of municipal liability, deliberate indifference claims, and claims of liability under various disability laws.

After reviewing the record before him and applying the allegations against the standard of review, Federal Court Judge Malachy E. Mannion found that the Plaintiff had stated plausible causes of action in all respects. As such, the Defendant’s Motion was denied and the case was allowed to proceed.

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

Summary Judgment Still Entered For Trucker Where GPS Confirmed Speed Contradicts Witness's Testimony on Speed

In the case of Thomas v. Orozco-Pineda, No. 3:24-CV-288 (M.D. Pa. Sept. 30, 2025 Mannion, J.), the court granted a partial Motion for Summary Judgment on a claim for punitive damages in a trucking accident case.

The court noted that the undisputed GPS data in the record established that the Defendant’s driver was not speeding at the time of the accident.

However, the court also noted that a witness testified at a deposition that the tractor trailer driver had been speeding moments before the accident.

Nevertheless, the court found that the witness's testimony did not establish a factual dispute sufficient to defeat the Defendant's summary judgment motion.

The court noted that where one party’s or witnesses’ version of events is blatantly contradicted by the record, such that no reasonable jury could believe it, a court should not accept or adopt that version of the facts for purposes of ruling on a Motion for Summary Judgment.

In addition to the GPS data confirming that the driver was traveling at or around 55 mph in a 65 mph speed limit zone at the time of the accident, the court stated that there was no other credible evidence of speeding.

The court additionally found that the "clean" road conditions did not support the Plaintiffs’ claims that even driving below the speed limit was too fast for the conditions. The court also noted that there was no reduced speed limit in effect at the time the accident occurred.

Accordingly, the court found that, given that there was no credible evidence of speeding on the part of the Defendants, the Plaintiffs had no factual basis for seeking punitive damages.

The court also ruled that, therefore, there was also no vicarious basis for punitive damages against the driver’s employer.

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.

Source of image:  Photo by Le Minh on www.pexels.com.

Judge Mannion of Federal Middle District Court Allows Punitive Damages Claim to Proceed in Trucking Accident Case

In the case of Thomas v. Orozco-Pineda, No. 3:24-CV-00288-MEM (M.D. Pa. Nov. 8, 2024 Mannion, J.), Judge Malachy E. Mannion of the Federal Middle District Court of Pennsylvania addressed a Motion to Dismiss in which a trucking company Defendant asserted that a Plaintiff-spouse’s loss of consortium claim, presented in an Amended Complaint, was barred by the statute of limitations. The court also addressed a request by the Defendant for the dismissal of the Plaintiff’s punitive damages claims. The Defendant’s Motion to Dismiss was denied.

Relative to the argument by the Defendant that the Plaintiffs had presented a loss of consortium claim in the Amended Complaint after the statute of limitations had expired, the court found that there were issues of fact that needed to be resolved before the statute of limitations issue could be determined. 

With regard to the Defendants’ argument that there were no factual disputes to resolve with regards to the statute of limitations barring the loss of consortium claim, Judge Mannion disagreed and concluded that “factual disputes or the lack thereof are also issues to be determined on a Motion for Summary Judgment not a Motion to Dismiss.”

Relative to the Defendant’s Motion to Dismiss the Plaintiffs’ punitive damages claims, the court also found this motion to be premature at the current stage of the litigation.

Judge Mannion noted that the courts of Pennsylvania have routinely denied requests to dismiss punitive damages claims in motor vehicle accident cases at the outset of litigation. The court noted that, as a general rule, the courts have deemed motions to dismiss punitive damages claims as premature and inappropriate where, as here, Complaint contains allegations of reckless conduct.

Judge Mannion additionally noted that, because the question of whether punitive damages are proper often turns on a defendant’s state of mind, i.e., the elements of malice or ill will required for punitive damages claims, the court found that question of whether the punitive damages claim should be dismissed cannot be resolved on the pleadings alone but must wait until the development of a full factual record through discovery or at trial.

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

Source: Article – “Judge Leaves Statute of Limitations Question In Injury Crash Suit For A Jury.” By: Riley Brennan Pennsylvania Law Weekly (Nov. 12, 2024).

Source of image:  Photo by Caleb Ruiter on www.unsplash.com.

Partial Summary Judgment Granted in favor of Pharmacist

In the case of Wolking v. Linder, No. 3:23-CV-806 (M.D. Pa. Aug. 8, 2024 Mannion, J.), the court granted partial summary judgment in a case involving a negligence action against pharmacists.

The court ruled that pharmacists owe a duty of care to their patients to act on obvious facial discrepancies with prescriptions.

In this matter, the court dismissed the Plaintiff’s allegations of punitive damages given that the Plaintiffs had not produced evidence in support thereof.

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

I send thanks to Attorney James M. Beck of the Reed Smith law firm in Philadelphia for bringing this case to my attention.

Source of image:  Photo by Alexander Grey on www.pexels.com.

Judge Mannion of Federal Middle District Court Addresses Continuing Validity of the Regular Use Exclusion and Makes Predictions

In the case of Dayton v. The Automobile Insurance Co. of Hartford, CT, No. 3:20-CV-01833-MEM (M.D. Pa. April 23, 2024 Mannion, J.), the court addressed the issue of whether “regular use” exclusion provision in a motor vehicle insurance policy is unenforceable as contrary to Pennsylvania law under a 75 Pa. C.S.A. §1738 analysis.

Judge Mannion predicted that the Pennsylvania Supreme Court would find that the regular use exclusion does not violate §1738 of Pennsylvania’s Motor Vehicle Financial Responsibility Law.

According to the Opinion, this lawsuit arose out of a motor vehicle accident during which the Plaintiff was injured while driving his employer’s truck. 

The Plaintiff sued after he was not allowed to stack his personal automobile coverage limits on top of the separate insurance policy issued by a different insurance company that his employer had for the truck that the Plaintiff had been driving at the time of the accident.

The carrier in this case had denied the Plaintiff’s claim for additional UIM benefits based upon a regular use exclusion which precluded any coverage when injuries were sustained by an insured while occupying a non-insured vehicle that was available for the insured’s regular use.

The court rejected the Plaintiff’s arguments under the Gallagher v. Geico line of cases under which the Plaintiff attempted to argue that the regular use exclusion, like the household exclusion, operates as a impermissible de facto waiver of stacking under certain circumstances.

In addition to noting that the scope of the Gallagher decision had been limited by recent decisions by Pennsylvania Supreme Court, including in the case of Erie Insurance Exchange v. Mione, Judge Mannion also noted that, earlier this year, the Pennsylvania Supreme Court had upheld the regular use exclusion as enforceable in the case of Rush v. Erie Insurance Exchange under a 75 Pa. C.S.A. §1731 analysis.

Judge Malachy E. Mannion
M.D. Pa.

The court noted that the separate §1738 analysis was not addressed in the Rush case. In this regard, Judge Mannion found that the Erie Insurance Exchange v. Mione by the Pennsylvania Supreme Court was instructive and “dictates the prediction that the Pennsylvania Supreme Court would conclude that a regular use exclusion which does not deprive an insured of stacked UIM coverage does not violate §1738.” 

In this case, the court found that the Plaintiff did not have any insurance policy under which §1738 would require stacking of the UIM coverage provided in his personal policy with the insurance company at issue in this case and that, therefore, that policy’s regular use exclusion does not deprive the Plaintiff of stacked coverage and, therefore, did not violate §1738.

Accordingly, the Plaintiff’s arguments that the regular use exclusion violated the MVFRL were rejected by the Court, the regular use exclusion was enforced, and the Defendant carrier was granted summary judgment in this case.

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


Source: Article – “Federal Court Predicts How Pa. Supreme Court will Address Unanswered Question About Regular Use Exclusion.” By Riley Brennan, the Legal Intelligencer (April 26, 2024).

Judge Mannion of Federal Middle District Upholds Regular Use Exclusion in the Third Party Liability Coverage Context

In the case of Burton v. Progressive Adv. Ins. Co., No. 3:21-CV-01522-MEM (M.D. Pa. March 20, 2023 Mannion, J.), the court addressed cross-Motions for Summary Judgment based upon a regular use exclusion.

This matter arose out of a motor vehicle accident. At the time of the accident, the Defendant driver was insured by an automobile insurance policy issued by the Defendant, Progressive Advanced Insurance Company. Under that policy, there was a regular use exclusion that precluded coverage to any insured who was operating a vehicle that was furnished or available for an insured’s regular use but which was not covered under the Progressive policy.

In other words, under that provision, Progressive was precluding coverage for accidents involving a vehicle that was regularly available for the insured's use but for which the insured was not paying Progressive any premiums for any insurance coverage.    

More specifically, on the date of the subject accident, the Defendant driver was driving a vehicle that was owned by her brother and which was not covered under the Progressive policy.

According to the record before court, the Defendant driver had her brother’s permission to be driving his vehicle at the time of the accident because she was having mechanical issues with her own vehicle. The Defendant driver noted that she had been driving her brother’s car for about a month or two before the incident. Other evidence in the case indicated that the Defendant driver was using the vehicle at issue on a daily basis and at her discretion.

Progressive denied coverage on the claims presented under an argument that the vehicle that the Defendant driver was operating was not covered under the Progressive policy and given that the vehicle that the Defendant driver was driving was allegedly furnished and available for her regular use and, therefore, fell under the regular use exclusion.

The Plaintiff cited the case of Rush v. Erie Insurance Exchange and asserted that the regular use exclusion should be deemed to be unenforceable under the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL).

The Defendant attempted to distinguish the Rush case and other cases as being distinguishable as UIM cases which reviewed the regular use exclusion under §1731 of the MVFRL, which statute governs the scope of UIM claims.

Judge Mannion noted that this case did not involve a UIM claim and that, therefore, §1731 did not apply. Rather, this case involved a request for liability coverage by the Defendant driver.

The court noted that the Plaintiff was requesting the court to extend the holdings of the Rush case, and another case cited in this Opinion, to cover liability claims as well. Judge Mannion noted that there was no support under Pennsylvania law for the requested extension of the law of those decisions to this fact pattern. As such, the Plaintiff’s Motion for Summary Judgment was denied.

The court also rejected the Plaintiff’s more specific factual arguments that the type of use of the vehicle by the Defendant driver was not regular, but rather, was incidental or temporary while the Defendant driver’s car was being repaired. The court rejected this claim after reiterating that the record before the court established that the Defendant driver had free access to use the car at her discretion over an extended period of time.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.

Does The Issuance of a New Policy Number on an Automobile Insurance Policy Constitute the Creation of a New Policy?

In the case of Shea v. Nationwide Ins. Co. and Davis, No. 3:22-CV0-00494-MEM (M.D. Pa. April 6, 2023 Mannion, J.), Judge Malachy E. Mannion of the United States District Court for the Middle District of Pennsylvania adopted the Report and Recommendation of Chief Federal Magistrate Judge Karoline Mehalchick and ordered that this declaratory judgment action be remanded to state court for review by the state court.

The legal issue presented in this matter addressed “the novel question or whether or not the issuance of a new policy number constitutes the establishment of a new policy requiring new sign down forms.”

The court determined that this issue presented a novel and unsettled issue of state law. As such, under the factors set forth in the case of Reifer v. Westport Ins. Corp., 751 F.3d 129 (3d. Cir. 2014), the court decided to remand the case to the state court for a decision.  The case was remanded to the Luzerne County Court of Common Pleas.

Anyone wishing to review a copy of the Report and Recommendation of Judge Mehalchick and well as the decision of Judgment Mannion approving the Report and Recommendation may click this LINK.

Plaintiff's counsel in this case was Attorney Neil T. O’Donnell and Attorney Gerard Gaughan of the Kingston, PA law firm of O’Donnell Law Offices.

 

Source of image: Photo by Priscilla Piacquadio on www.pexels.com.

Judge Mannion of Federal Middle District Addresses Motion for Summary Judgment in a Skiing Accident Case

In the case of Mattei v. Tuthill Corp., No. 3:19-CV-2196 (M.D. Pa. Feb. 28, 2023 Mannion, J.), the court denied a Defendant’s Motion for Summary Judgment in a case arising out of a skiing accident. 

As noted by Judge Malachy E. Mannion at the outset of his Opinion, this case raised questions as to the inherent risks of downhill skiing, the enforceability of releases on lift tickets, and the legal sufficiency of the facts alleged by the Plaintiff relative to the Defendant's alleged gross negligence and recklessness.

The court reviewed the terms of the Pennsylvania Skier's Responsibility Act and ruled that the “no duty” rule relieving ski resorts of liability under the Act for common and inherent risk attendant with skiing was in dispute in this matter because it was unclear as to whether the Plaintiff was skiing on or off a designated trail at the Blue Mountain Resort in the Poconos.  

Judge Malachy E. Mannion additionally noted that there was other conflicting evidence as to whether the hazard at issue was perceptible to skiers.

The court found that whether a certain danger is perceptible to skiers is generally relevant to the question of whether that risk is inherent to downhill skiing.

The court additionally found that the Defendant had not proven that the Plaintiff’s negligence claims were barred by the exculpatory release contained on the back of the lift ticket.

Judge Mannion noted that, in this case, the lift ticket was an exemplar. There was no other proof offered beyond a disputed inference that the Plaintiff actually received a lift ticket.

Given that the court also found that there were genuine issues of material fact relative to the Defendant’s alleged gross negligence and recklessness involving an alleged conscious disregard of the risk of harm allegedly posed by an alleged five foot ditch on the ski trail, summary judgment was denied.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE


I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Mati Mango on www.pexels.com.

UIM Bad Faith Claim Allowed to Proceed But UTPCPL Claim Dismissed

In the case of Defuso v. State Farm Mut. Auto. Ins. Co., No. 3:21-CV-507 (M.D. Pa. March 21, 2022), Judge Malachy E. Mannion of the Federal Middle District Court of Pennsylvania found that a Plaintiff had pled sufficient facts to survive a Motion to Dismiss her bad faith claim in a UIM case. However, the Plaintiff’s claims for violations under the Unfair Trade Practices and Consumer Protection law were dismissed.

According to the Opinion, the tortfeasor tendered its $100,000.00 liability limits to the Plaintiff and the UIM carrier agreed to consent to that settlement. The Plaintiff had $50,000.00 in stacked UIM coverage.

The record in the case revealed that the Plaintiff participated in discovery, a statement under oath, and an IME over the first seventeen (17) months of the claim. Following the expiration of that time, the carrier made its first offer of $7,500.00.

Judge Malachy E. Mannion
M.D. Pa.

In his Opinion, Judge Mannion found that the Plaintiff had adequately pled a bad faith claim. Judge Mannion rejected the argument of the defense that the case merely involved a valuation dispute. 

In so ruling, the court pointed to allegations by the Plaintiff that there were delays in the claims handling and that the carrier allegedly failed to entirely and appropriately investigate and evaluate the case presented. The Plaintiff also alleged that the carrier had unreasonably undervalued the Plaintiff’s claims.

The court did, however, dismiss the Plaintiff’s UTPCPL claim after finding that the Plaintiff merely recited the elements of such claim and did not allege facts to support the same. The court additionally noted that a claim of an alleged failure on the part of the carrier to act on an insurance claim in a timely manner was not a valid cause of action under the UTPCPL, as such a claim is a claim for nonfeasance as opposed to a claim of malfeasance.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order can be viewed HERE.


I send thanks to Attorney Lee Applebaum of the law office of Fineman Krekstein & Harris for bringing this case to my attention. Please be sure to check out Attorney Applebaum’s excellent Pennsylvania New Jersey Insurance Bad Faith Case Law blog.

Slip and Fall On Snow or Ice Case Gets Beyond Summary Judgment

In the case of Tuft v. Giglio, No. 3:20-CV-643 (M.D. Pa. March 7, 2022 Mannion, J.), the court denied summary judgment in a slip and fall case.

In this matter, in which there is testimony that the Defendant’s property had been cleared of snow before the Plaintiff allegedly fell, the court found that a dispute of fact prevented summary judgment under the hills and ridges doctrine.

Judge Mannion reiterated the rule of law that the hills and ridges doctrine only applies to a natural accumulation of snow or ice. The court found that, under the facts of this case, there was a factual dispute as to whether the doctrine should be applied.

As such, summary judgment was denied.

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

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

Photo by Miguel Padrinan from www.pexels.com.

Another Federal District Court Finds that the Regular Use Exclusion is Invalid And Makes a Prediction.....

On the heels of the Western District Court decision in Johnson v. Progressive Adv. Ins. Co. summarized on Friday here on Tort Talk (See that Tort Talk post at this LINK), comes Judge Malachy E. Mannion's decision out of the Federal Middle District Court of Pennsylvania denying a carrier's motion for summary judgment based upon an effort to rely upon a Regular Use Exclusion.  Judge Mannion predicted that, if faced with this same issue, the Pennsylvania Supreme Court would rule in the same fashion.

In the Federal Court case of Evanina v. The First Liberty Ins. Corp., No. 3:20-CV-00751-MEM (M.D. Pa. Feb. 25, 2022 Mannion, J.), the Court denied a carrier’s motion for summary judgment on a Plaintiff’s UIM claim in which the carrier was attempting to rely upon the Regular Use Exclusion.

According to the Opinion, the Plaintiff, who was a home health worker, was in a motor vehicle accident and secured the minimal policy limits available under the tortfeasor’s policy.

At the time of the accident, the Plaintiff was operating a vehicle that was owned by her employer.  That vehicle was insured by Philadelphia Indemnity Insurance Company.

At the time the Plaintiff was also covered under another UIM policy issued by First Liberty Insurance Company, which presumably covered her personal vehicle (the Opinion does not so state or specify).

The Plaintiff settled for the minimal policy liability limits possessed by the tortfeasor.

The Plaintiff then submitted a first-tier UIM claim to Philadelphia Indemnity and a second-tier UIM claim with First Liberty.

The second-tier carrier, First Liberty, denied coverage to the Plaintiff under the Regular Use Exclusion contained in its policy.

Thereafter, the Plaintiff commenced this breach of contract claim against First Liberty.  A motion for summary judgment was eventually filed by First Liberty which resulted in this decision being issued by Judge Mannion.

Judge Malachy E. Mannion
M.D.Pa.

The court confirmed that the issues in this case were being addressed after the previous issuance of the Pennsylvania Superior Court’s decision in Rush v. Erie Ins. Exchange, 256 A.3d 794 (Pa. Super. 2021), in which that court held that regular use exclusions were not enforceable because they run counter to Pennsylvania’s Motor Vehicle Financial Responsibility Law.

In this Federal Court matter, the carrier attempted to argue that the regular use exclusion was still valid even though the Superior Court invalidated it in Rush. The insurance company attempted to cite to the Pennsylvania Supreme Court Opinion in Williams v. Geico Govt. Emp. Ins. Co., 32 A.3d 1195 (Pa. 2011).

Similar to Judge Schwab's decision in Western District Court case of Johnson v. Progressive Adv. Ins. Co., Judge Mannion in this Middle District Court case of Evanina decided not to follow the Williams decision and found that the Williams decision was only a public policy based decision and not statutorily based decision as the more recent Rush decision was relative to the MVFRL.

Judge Mannion noted that the Pennsylvania Supreme Court had not yet addressed the validity of the Regular Use Exclusion in the context of whether that exclusion runs afoul of Pennsylvania's MVFRL.  As such, Judge Mannion stated that he was required to attempt to predict how the Pennsylvania Supreme Court might rule on this issue if faced with this issue.

Judge Mannion reviewed certain recent Pennsylvania Supreme Court decisions such as the Gallagher v. GEICO decision and the Donovan v. State Farm decision in both of which the Pennsylvania Supreme Court had ruled that the household exclusion was invalid and, therefore, unenforceable.  The Court in this Evanina case noted that the household exclusion was "a substantially similar exclusion [as compared] to the regular use exclusion."  See Op. at p. 15 [bracket inserted here].  

As such, Judge Mannion predicted that, "considering the trend of the Pennsylvania Supreme Court in its rulings," if faced with the issue of the validity of the Regular Use Exclusion, the Pennsylvania Supreme Court would find this exclusion to be invalid and, therefore, unenforceable.    See Op. at p. 16. 

Accordingly, Judge Mannion ruled in the same fashion and denied the UIM carrier's motion for summary judgment as a result.

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


I send thanks to Attorney Scott Cooper of the Harrisburg, PA law office of Schmidt Kramer for bringing this case to my attention. I note that the Plaintiff's attorneys in this Evanina case were Neil O'Donnell and Gerard Gaughan of the O'Donnell Law Offices in Kingston, PA.

Motion to Remand Regular Use Exclusion Issues Back to State Court Denied

In the case of Dayton v. The Auto Ins. Co. of Hartford, Conn., No. CV-3:20-1833 (M.D. Pa. Nov. 5, 2021 Mannion, J.), the federal court applied the Reifer factors and refused to remand this automobile insurance coverage action involving a dispute over the application of the regular use exclusion relative to the Plaintiff’s underinsured motorist coverage. 

The court found that, as of the date of its decision in this case, the law of Pennsylvania and regular use exclusion was settled and, as such, this issue did not constitute a reason in support of remanding the matter to the state court.

The court otherwise granted the Defendant’s carrier’s Motion to Dismiss the Complaint for failing to plead specific facts sufficient to make out a plausible bad faith claim. The court did allow the Plaintiff an opportunity to file an Amended Complaint.

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


I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman Krekstein & Harris, and also the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog, for bringing this decision to my attention.

Source of image:  Photo by Jim Wilson on www.unsplash.com.

Case Arising Out of Slip and Fall Caused by Toy in a Store Aisle Dismissed

In the case of Pickett v. Target Corp., No. 3:20-CV-00237 (M.D. Pa. Nov. 5, 2021 Mannion, J.), the court granted summary judgment in a store slip and fall case.  According to the Opinion, the Plaintiff fell as a result of encountering a children's grabber toy that was on the floor in a well lit aisle fo the store.

In so ruling, the court primarily accepted the defense that the incident involved an open or obvious danger. More specifically, the court found that the presence of an easily visible fallen object in a well-lit aisle in the store is an obvious as a matter of law. 

The court also reaffirmed the basic rule of law that a person must watch where he or she is walking.

Judge Malachy E. Mannion
M.D.Pa.

Judge Mannion also ruled that, in a slip and fall case, the fact that a type of incident allegedly occurred frequently cannot be generally utilized to establish actual notice of a particular condition allegedly involved in a particular accident.

The court additionally rejected, as a circumlocution, the argument that the Defendant did not adequately monitor an area of the store because, if it had, the accident would not have occurred.

The court otherwise rejected the argument of constructive notice by confirming that the Plaintiff did not offer any evidence as to how long the object at issue was on the floor.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.

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.

Remand to State Court on Regular Use Exclusion Issue Denied

In the case of Dayton v. The Auto Ins. Co. of Hartford, Conn., No. CV-3:20-1833 (M.D. Pa. Nov. 5, 2021 Mannion, J.), the federal court applied the Reifer factors and refused to remand this automobile insurance coverage action involving a dispute over the application of the regular use exclusion relative to the Plaintiff’s underinsured motorist coverage. 

The court found that, as of the date of its decision in this case, the law of Pennsylvania and regular use exclusion appeared to be settled and, as such, this issue did not constitute a reason in support of remanding the matter to the state court.

Judge Malachy E. Mannion
Federal Middle District Court of PA

Judge Malachy E. Mannion otherwise granted the Defendant’s carrier’s Motion to Dismiss the Complaint for failing to plead specific facts sufficient to make out a plausible bad faith claim. The court did allow the Plaintiff an opportunity to file an Amended Complaint.

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

I send thanks to Attorney Lee Applebaum of the Philadelphia law firm of Fineman Krekstein & Harris, and also the writer of the excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law blog, for bringing this decision to my attention.  Lee's excellent Blog on bad faith cases can be viewed HERE.

Third Circuit Court of Appeals Addresses Section 1983 Civil Rights Issues (Non-Precedential)

TortTalkers may recall a previous Tort Talk post on the case of Cost v. Borough of Dickson City, under which Judge Malachy Mannion of the Federal Middle District Court of Pennsylvania granted in part and denied in part summary judgment in favor of a municipality and Defendant police officers in the §1983 Civil Rights litigation. In a case arising out of a police response to a domestic disturbance.

As an update on that matter, under a decision marked as “Not Precedential” and dated June 3, 2021, the United States Court of Appeals for the Third District affirmed the trial court’s entry of summary judgment for the Defendants.

Anyone wishing to review a copy of this case, which contains a summary of the current status of the law in civil litigation matters alleging violations of the Fourth Amendment under 42 U.S.C. §1983 and state law, may click this LINK.

I send thanks to Attorney Patrick J. Murphy of the Scranton office of the Bardsley, Benedict and Scholden LLP law firm for bringing this to my attention.

Source of image:  Bill Oxford on Unsplash.  

Motion to Stay Civil Case Pending Resolution of Criminal Case Granted

A Motion to Stay a civil matter pending the resolution of a criminal investigation and charges was granted in the Federal Middle District court case of Doe v. City of Scranton, No. 3:20-490 (M.D. Pa. March 18, 2021 Mannion, J.).

According to the Opinion, the Defendant allegedly used his position as a police officer to coerce sex from woman he used as confidential informants in drug cases he was investigating.

This civil case is proceeding while the companion criminal charges are being investigated.  The court noted that there is an alleged expectation that criminal charges will be filed against the Defendant.

Based upon the court’s review of the Motion to Stay and related materials, Judge Mannion granted the motion and the case was stayed.

The court noted that, in federal court, the decision to stay a case is within the sound discretion of the trial court judge.  Judge Mannion went on to review the six factors to be considered and, in the end, allowed for the stay of the civil matter as requested by the Defendant.

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

Judge Mannion of Federal Middle District Court Addresses Section 1983 Claims Relative to Police Entry into House in Response to Domestic Disturbance

In the case of Cost v. Borough of Dickson City, No. 3:-cv-1494 (M.D. Pa. Oct. 15, 2020 Mannion, J.), the court addressed summary judgment motions filed by a municipality and Defendant police officers in a §1983 Civil Rights litigation. The court granted the motion in part and denied it in part. 

According to the Opinion, the case arose out of a police response to a domestic disturbance. 

 The Defendant police officers asserted that they had knocked on the front door of the home numerous occasions to no response. The officers testified that, based upon the details of the 911 call, which included a notation that children were screaming, and given that, when the officers arrived on the scene and heard yelling and heard a female shouting the word “stop” inside of the residence, and given that everything then became quiet when they approached the front door, the officers eventually forced a door open after which certain individuals, including one of the Plaintiffs, were arrested. 

It was then determined that the disturbance involved an argument with the daughter of the family over a cell phone. 

After one of the Plaintiffs identified themselves within the home, that Plaintiff was released. The other Plaintiff refused to identify himself and was put in the police car to be transported to a processing center. That person was placed under arrest for Disorderly Conduct. Upon arrival at the processing center, that Plaintiff then identified himself and was released. Thereafter, a citation issued to that Plaintiff was dismissed after the officer failed to appear at the hearing. 

The Plaintiffs thereafter brought suit against the various Defendants with each Plaintiff alleging an unlawful search and seizure claim under the Fourth and Fourteenth Amendment, a Fourth Amendment excessive force claim, a state law assault and battery claim, and a Fourth Amendment and state law false arrest and false imprisonment claim, and a claim of inadequate supervision and training by the borough. The Plaintiff who had been taken for processing also alleged Fourth Amendment and state law malicious prosecution claims. 

After reviewing the current status of the law on these types of claims, the court granted the motions at issue in part and denied them in part. 

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

I send thanks to Attorney Patrick J. Murphy of the Scranton office of the Bardsley Benedict & Cholden, LLP law firm for bringing this case to my attention.

Section 1983 Civil Rights Complaint Dismissed Where Court Finds that Probable Cause Existed to Support the Police Officer's Actions

In the case of Raj v. Dickson City Borough, No. 3:17-692 (M.D. Pa. Oct. 14, 2020 Mannion, J.), the court addressed a Motion for Summary Judgment filed by Defendants in a §1983 civil rights action arising out of a traffic stop and a vehicle search that allegedly revealed cocaine in the vehicle. 

The Plaintiff brought §1983 claim for unreasonable search and seizure, false arrest, malicious prosecution, and municipal liability. 

After finding that there was probable cause to arrest the Plaintiff, the court dismissed each of the Plaintiff’s claims under §1983 for unlawful search and seizure, false arrest, malicious prosecution, and for municipal liability. The court noted that, where there was probable cause for the arrest, there was no constitutional violation such that the Plaintiff’s §1983 claims failed as a matter of law. 

The court also noted that there is no evidence presented that the police disregarded the truth in his application for an arrest warrant. Nor was there any evidence of additional information which would have confirmed that there was no probable cause to support the officer's actions. 

Given that there was no lack of probable cause in this matter to support the arrest warrant, the court also granted summary judgment on the Plaintiff’s supplemental state law claims based upon claims of false arrest and malicious prosecution. 

In the end, the court granted summary judgment in favor of the defense on these allegations in the Plaintiff’s Complaint and dismissed the matter. 

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


I send thanks to Attorney Patrick J. Murphy of the Scranton, PA office of Bardsley, Benedict & Scholden, LLP for bringing this case to my attention. 

Federal Middle District Court Rejects Argument That Plaintiff's Claims Against Trucking Defendant Are Pre-Empted By Federal Law

In the case of Ciotolo v. Star Transp. and Trucking, No. 3:19-CV-00753-MEM (M.D. Pa. Aug. 24, 2020 Mannion, J.), the court ruled that Pennsylvania's general tort law is not pre-empted by the Federal Aviation Administration Authorization Act ("FAAA").

This matter arose out of a tractor trailer accident during which the Plaintiff's vehicle was hit from the rear.

The trucking Defendant asserted that the Plaintiff's claims were pre-empted by the FAAA, since the claims related to the Defendant's core services of brokering the shipment of goods in interstate commerce. 

This argument was rejected by the Court.  Although the Court relied upon Third Circuit precedent, this decision by Judge Malachy E. Mannion may be the first decision of its kind out of the Federal District Court for the Middle District of Pennsylvania.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Harry McGrath of the Kingston, PA law firm of Fellerman & Ciarimboli for bringing this case to my attention.