Showing posts with label Judge Mazzoni. Show all posts
Showing posts with label Judge Mazzoni. Show all posts
Monday, November 18, 2019
Preliminary Injunction Seeking to Preclude Doctor From Working Under Covenant Not To Compete Denied
In the case of Geisinger Clinic v. Michael J. Rogan, M.D., No. 2019-CV-433 (C.P. Lacka. Co. Nov. 7, 2019 Mazzoni, S.J.), the court denied the Plaintiff’s Petition for a Preliminary Injunction seeking to enjoin the Defendant doctor from practicing medicine within a 25 mile radius based upon a restrictive covenant contained in a practice agreement between the two parties.
The court reviewed the law of restrictive covenants in this and ruled that, while there was no ambiguity in the language of the contract, the court was also required to determine whether the enforcement of the restrictive covenant would compromise the ability of the public to obtain timely and adequate medical care.
The court ruled that enforcing the restrictive covenant would have prevented the public from timely access to healthcare with the Defendant doctor. The court also emphasized that the Defendant doctor was the only physician in the area who was board certified in child abuse pediatric, which experience was utilized by the Defendant as a Medical Director for the Children’s Advocacy Center of Northeastern Pennsylvania. The court also noted that the Defendant doctor also provided medical services to special needs children at St. Joseph’s Center.
The court noted that precluding the Defendant doctor from serving either of those organizations in and of itself would be tantamount to depriving the communities of Northeastern Pennsylvania of a desperately needed service.
Anyone wishing to review a copy of this decision may click this LINK.
I send thanks to the prevailing attorneys, Sal Cognetti, Jr., and attorney Sarah Lloyd of the Scranton law firm of Cognetti & Cimini for bringing this decision to my attention.
Monday, April 18, 2016
Cooper Interrogatories Addressed to Plaintiff's Treating Physician Reconsidered By Judge Mazzoni of Lackawanna County
Tort Talkers may recall that I recently posted on the case of Mina v. Hua Mei, Inc., 2012-CV-7781 (C.P. Lacka. Co. 2016 Mazzoni, J.) HERE in which Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas ruled that a Plaintiff's treating doctor could be compelled to respond to Cooper Interrogatories seeking bias information, including financial information relative to the experts medical-legal activities.
UPDATE: On April 14, 2016, the trial court in Mina issued a detailed Order granting the Plaintiff's Motion for Reconsideration and reversing its original decision. Relying, in part, on an affidavit from Plaintiff's counsel that the Plaintiff's attorney had no prior relationship with the expert.
Judge Mazzoni noted that, upon further consideration of the matter, the threshold test mandated by Cooper v. Schoffstall, 905 A.2d 482 (Pa. 2006) of showing that the Plaintiff's treating physician was a "professional witness" had not been met by the defense. Accordingly, the court found that it would not be appropriate to allow for the more intrusive Cooper Interrogatories to be submitted to that expert.
In so ruling, Judge Mazzoni confirmed that treating physicians are not exempt from being submitted to Cooper Interrogatories in an appropriate case. Judge Mazzoni stated that "[t]he application of Pa.R.C.P. 4003.5 and relevant case law do not carve out exceptions for treating physicians nor do they exclusively apply to independently retained medical experts. The Rule and relevant case law cited in this Court's initial Order are party neutral make no distinction whether the non-party expert is retained by the Plaintiff or the Defendant."
Anyone wishing to review Judge Mazzoni's latest Order in this case can click this LINK
Judge Mazzoni's original decision can be viewed HERE.
I send thanks to Atttorney Melissa J. Foley of the Scranton, PA law office of Jill Miller & Associates, P.C., for bringing this case to my attention.
UPDATE: On April 14, 2016, the trial court in Mina issued a detailed Order granting the Plaintiff's Motion for Reconsideration and reversing its original decision. Relying, in part, on an affidavit from Plaintiff's counsel that the Plaintiff's attorney had no prior relationship with the expert.
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| Senior Judge Robert A. Mazzoni Lackawanna County |
In so ruling, Judge Mazzoni confirmed that treating physicians are not exempt from being submitted to Cooper Interrogatories in an appropriate case. Judge Mazzoni stated that "[t]he application of Pa.R.C.P. 4003.5 and relevant case law do not carve out exceptions for treating physicians nor do they exclusively apply to independently retained medical experts. The Rule and relevant case law cited in this Court's initial Order are party neutral make no distinction whether the non-party expert is retained by the Plaintiff or the Defendant."
Anyone wishing to review Judge Mazzoni's latest Order in this case can click this LINK
Judge Mazzoni's original decision can be viewed HERE.
I send thanks to Atttorney Melissa J. Foley of the Scranton, PA law office of Jill Miller & Associates, P.C., for bringing this case to my attention.
Monday, January 11, 2016
Plaintiff's Treating Doctors May Also Be Subjected to Cooper Interrogatories
In this matter, the Plaintiff alleged personal injuries as a result of a slip and fall on the defendant's premises. Following the accident, the Plaintiff was treated, in part, by a physatrist.
During discovery, the defense served Cooper v. Schoffstall-type Interrogatories to the Plaintiff seeking financial bias information relative to that doctor who would be called as a witness at trial by the Plaintiff.
The Plaintiff objected on the grounds the Interrogatories were inappropriate as the doctor was a treating doctor who was not retained by the Plaintiff with an eye towards litigation. Moreover, the Plaintiff argued that, although the doctor issued a report, he did not complete an IME or records review.
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| Judge Robert A. Mazzoni Lackawanna County |
In ruling that the bias discovery should be allowed, Judge Mazzoni looked at several factors. It was noted that Plaintiff's counsel had requested the report from the doctor and specifically requested the doctor to include in the report his opinion on several issues related to the litigation, including the issues of causation and permanency. This request, and the report, were written about a year before the litigation began.
Judge Mazzoni cautioned that the fact that this request was made by Plaintiff's attorney and the content of the report did not finally resolve the question presented as doctors often include their opinion on causality and prognosis in their reports.
What "tips the scales" for the court in this matter was how the doctor framed his opinion on causality. The court emphasized that, in his report, the doctor specifically utilized the language "to a reasonable degree of medical certainty" relative to his opinion. See Op. at p. 5.
Under the totality of the above circumstances, with the Plaintiff's attorney requesting the report, the particulars of the report, and how the causality opinion was framed, the Court ruled that the report of the doctor was generated with an "eye towards litigation."
As such, the Court ordered a number of the Interrogatories at issue to be to be answered but found some others to be overly broad and unduly burdensome. The Court also ordered that the defendant sign a confidentiality agreement with regards to the financial background information secured with this discovery from the doctor.
Anyone wishing to review this decision may click this LINK.
To view a January 19, 2016 Pennsylvania Law Weekly article by Ben Seal entitled "Trial Court Opinions Clarify Ability to Question Doctors" which covers this case, click this LINK. If you cannot access the article via the Link, please let me know and I will email you a copy.
I send thanks to Attorney Kevin C. Hayes of the Scranton, PA office of Scanlon, Howley & Doherty, P.C. for bringing this case to my attention.
Tuesday, January 5, 2016
Civil Court Judicial Assignments Announced for Lackawanna Court of Common Pleas
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| The Lackawanna County Court of Common Pleas Scranton, PA |
According to a January 5, 2016 article by David Singleton in the Scranton Times-Tribune entitled "Jarbola Sworn in as Lackawanna County Judge" regarding Judge Andy Jarbola taking the bench, President Judge Michael Barasse also announced judicial assignments to the Civil Division of the same court.
According to the article, Judge Terrence R. Nealon will serve as Administrator of the Civil Division, with Judge Margie Bisignani-Moyle and Judge James A. Gibbons sharing the civil litigation workload.
While the article did not reference the following, on information and belief, now Senior Judge Carmen D. Minora will preside over the Discovery Motions court and may possibly assist with other civil matters. Senior Judge Robert A. Mazzoni will also assist with the civil docket caseload.
Tuesday, March 10, 2015
Judge Mazzoni of Lackawanna County Reviews Parameters for Site Inspections by Experts
In his recent decision in the case of Gardner v. MIA Products Co., et.al., No. 2011-CV-1560 (C.P. Lacka.
Co. No. 10, 2014 Mazzoni, J.), Judge Robert Mazzoni of the Lackawanna County
Court of Common Pleas denied a Plaintiff’s appeal from an Order issued by the
Special Discovery Master of Lackawanna County with respect to issues raised
relative to a site inspection of the Defendants’ facility.
By way of background, this case involved a slip and fall on the Defendant's premises. During the course of discovery, the Plaintiff filed a motion to compel the Defendant to allow entry on the property for a site inspection. The defense responded that it had no objection to a site inspection but required that those entering the premises would be required to sign in and present valid photo identification. The defense also requested copies of all photos and videos taken on the date of the inspection.
The Plaintiff argued that, under the applicable Rules, the Plaintiff was not required to disclose the identity of various individuals that would be participating in the site inspection as such disclosures would permit the Defendants to learn the Plaintiff’s trial strategy, including but not limited to, the identity of potential experts, which would allegedly be prejudicial to the Plaintiff’s case.
The Plaintiff also asserted that the production of all photos
and videos completed during the inspection, including those not intended for
trial, was not permitted under the attorney work product privilege.
Judge Mazzoni noted that the defense presented evidence that its sign in and photo I.D. requirement had long been in place and was not specific to this case.
The court additionally reviewed the applicable law under Pa.R.C.P. 4003.5 pertaining to "Discovery of Expert Testimony. Trial Preparation Material."
While the court agreed that, under that Rule, disclosure of the opinions of experts that a party retained but did not intend to present at trial was protected, the Rule is silent on the issue of the mere "identification" of such experts. Judge Mazzoni went on to note that he did not see how the identification of experts in this regard would compromise the trial strategy of a Plaintiff in a slip and fall case. No opinions would be disclosed with such information. The court also noted that the Defendant had bona fide reasons behind its policy of generally requiring those entering the premises to sign in and identify themselves.
Judge Mazzoni also found the Plaintiff's reliance upon the work product doctrine to be misplaced with respect to the assertion that Plaintiff need not turn over photos or videos generated during the site inspection. The court noted that no attorney mental impressions, conclusions, or opinions would be disclosed by way of the production of such photos or videos.
As stated, Plaintiff’s appeal of the Special Discovery Master’s Order was denied.
By way of background, this case involved a slip and fall on the Defendant's premises. During the course of discovery, the Plaintiff filed a motion to compel the Defendant to allow entry on the property for a site inspection. The defense responded that it had no objection to a site inspection but required that those entering the premises would be required to sign in and present valid photo identification. The defense also requested copies of all photos and videos taken on the date of the inspection.
The Plaintiff argued that, under the applicable Rules, the Plaintiff was not required to disclose the identity of various individuals that would be participating in the site inspection as such disclosures would permit the Defendants to learn the Plaintiff’s trial strategy, including but not limited to, the identity of potential experts, which would allegedly be prejudicial to the Plaintiff’s case.
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| Judge Robert A. Mazzoni Lackawanna County |
Judge Mazzoni noted that the defense presented evidence that its sign in and photo I.D. requirement had long been in place and was not specific to this case.
The court additionally reviewed the applicable law under Pa.R.C.P. 4003.5 pertaining to "Discovery of Expert Testimony. Trial Preparation Material."
While the court agreed that, under that Rule, disclosure of the opinions of experts that a party retained but did not intend to present at trial was protected, the Rule is silent on the issue of the mere "identification" of such experts. Judge Mazzoni went on to note that he did not see how the identification of experts in this regard would compromise the trial strategy of a Plaintiff in a slip and fall case. No opinions would be disclosed with such information. The court also noted that the Defendant had bona fide reasons behind its policy of generally requiring those entering the premises to sign in and identify themselves.
Judge Mazzoni also found the Plaintiff's reliance upon the work product doctrine to be misplaced with respect to the assertion that Plaintiff need not turn over photos or videos generated during the site inspection. The court noted that no attorney mental impressions, conclusions, or opinions would be disclosed by way of the production of such photos or videos.
As stated, Plaintiff’s appeal of the Special Discovery Master’s Order was denied.
Anyone desiring a copy of this Opinion by Judge Mazzoni
relative to certain parameters for site inspections may contact me at dancummins@comcast.net.
Wednesday, November 20, 2013
Judge Mazzoni of Lackawanna County Denies Motion for Summary Judgment in Auto Law Bad Faith Claim
In his recent Opinion in the case of Kearney v. Travelers Insurance Company and the St. Paul Fire and Marine
Insurance Company, No. 2010-CV-8801 (C.P. Lacka. Co.
Nov. 13, 2013
Mazzoni, J.), Judge Robert A. Mazzoni of the Lackawanna County Court of Common
Pleas denied the Defendants’ Motion for Summary Judgment in a bad faith claim
pursued under 42 Pa. C.S.A. §8371 and arising out of the handling of the
Plaintiff’s underinsured motorist claim.
According to the Opinion, after settling his third party
claim in this tractor trailer accident involving two tractor trailers, the Plaintiff
submitted a claim for underinsured motorist benefits to the Defendants.
In this matter, due to the fact that the carrier could not locate the relevant “signed down” form for the UIM coverage under the policy, the policy limits were asserted to be $1million in coverage rather than $35,000.00.
Thereafter, the Plaintiff continued to provide the carrier with medical documentation in support of the claims presented, including several IME reports that were generated during the litigation involving the third party tortfeasor. The Plaintiff also underwent a Statement Under Oath. According to the court's Opinion in Kearney, at some point during the litigation, the carrier’s claims representative authorized its defense counsel to communicate to Plaintiff’s attorney a settlement offer of $200,000.00.
However, this offer was never made because, in part, an argument was raised by the UIM defense counsel that the third party Release executed by the Plaintiff constituted a General Release which had the effect of releasing the UIM carrier as well. Upon receiving this opinion of the defense counsel, the claims representative for the Defendant UIM carrier directed the defense attorney to hold off on any settlement offers.
The parties thereafter exchanged legal arguments through correspondence over the parameters of the Release and over whether the Court or a panel of arbitrators had the authority to resolve the dispute.
Judge Mazzoni outlined in detail in his Kearney decision the extent to which the issues of the scope of the Release and the jurisdiction of the arbitration panel to decide the case was litigated by the parties before the Arbitration panel, in the Lackawanna County Court of Common Pleas ,and up to the Superior Court and back again, as well as in the Federal District Court for the Middle District Court of Pennsylvania.
After the Plaintiff ultimately prevailed in all of these separate court actions with repeated decisions that the third party Release did not bar the UIM claim, that the UIM Arbitration Panel had the authority to rule upon that issue, and that the UIM Arbitration award should be confirmed, the UIM carrier then proceeded to pay the Plaintiff the full amount of the net arbitration award together with interest.
The Plaintiff followed that payment with this breach of contract and bad faith action. After the bad faith action proceeded through discovery, the Defendant carrier filed a Motion for Summary Judgment.
In his Opinion, Judge Mazzoni provided thorough review of the current status of bad faith law inPennsylvania
In his Opinion, Judge Mazzoni noted that a significant part of the court’s analysis in denying the motion for summary judgment involved the issues surrounding the carrier’s repeated raising of the legal challenges of the scope of the Release and jurisdiction of the arbitration panel, the timing thereof, and whose decision (defense counsel vs. claims representative) it was to proceed with such arguments.
Judge Mazzoni found that issues of fact remained on the matters presented such that a trier of fact could conclude that the carrier acted in bad faith by raising allegedly patently inapplicable legal issues which were not supported of in law or in fact and which allegedly served no purpose but to delay the ultimate resolution of the claim.
The court also noted that, despite the carrier’s claim of insufficient medical information, the Plaintiff claimed that, from the first medical records submission by the Plaintiff to the carrier, it took the carrier approximately 18 months to communicate a formal settlement offer.
Accordingly, based upon his analysis and after reviewing the record in a light most favorable to the Plaintiff as a non-moving party, Judge Mazzoni found that the there were genuine issues of material fact which precluded the court from granting the UIM carrier’s request for summary judgment.
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| Judge Robert A. Mazzoni Lackawanna County |
In this matter, due to the fact that the carrier could not locate the relevant “signed down” form for the UIM coverage under the policy, the policy limits were asserted to be $1million in coverage rather than $35,000.00.
Thereafter, the Plaintiff continued to provide the carrier with medical documentation in support of the claims presented, including several IME reports that were generated during the litigation involving the third party tortfeasor. The Plaintiff also underwent a Statement Under Oath. According to the court's Opinion in Kearney, at some point during the litigation, the carrier’s claims representative authorized its defense counsel to communicate to Plaintiff’s attorney a settlement offer of $200,000.00.
However, this offer was never made because, in part, an argument was raised by the UIM defense counsel that the third party Release executed by the Plaintiff constituted a General Release which had the effect of releasing the UIM carrier as well. Upon receiving this opinion of the defense counsel, the claims representative for the Defendant UIM carrier directed the defense attorney to hold off on any settlement offers.
The parties thereafter exchanged legal arguments through correspondence over the parameters of the Release and over whether the Court or a panel of arbitrators had the authority to resolve the dispute.
Judge Mazzoni outlined in detail in his Kearney decision the extent to which the issues of the scope of the Release and the jurisdiction of the arbitration panel to decide the case was litigated by the parties before the Arbitration panel, in the Lackawanna County Court of Common Pleas ,and up to the Superior Court and back again, as well as in the Federal District Court for the Middle District Court of Pennsylvania.
After the Plaintiff ultimately prevailed in all of these separate court actions with repeated decisions that the third party Release did not bar the UIM claim, that the UIM Arbitration Panel had the authority to rule upon that issue, and that the UIM Arbitration award should be confirmed, the UIM carrier then proceeded to pay the Plaintiff the full amount of the net arbitration award together with interest.
The Plaintiff followed that payment with this breach of contract and bad faith action. After the bad faith action proceeded through discovery, the Defendant carrier filed a Motion for Summary Judgment.
In his Opinion, Judge Mazzoni provided thorough review of the current status of bad faith law in
In his Opinion, Judge Mazzoni noted that a significant part of the court’s analysis in denying the motion for summary judgment involved the issues surrounding the carrier’s repeated raising of the legal challenges of the scope of the Release and jurisdiction of the arbitration panel, the timing thereof, and whose decision (defense counsel vs. claims representative) it was to proceed with such arguments.
Judge Mazzoni found that issues of fact remained on the matters presented such that a trier of fact could conclude that the carrier acted in bad faith by raising allegedly patently inapplicable legal issues which were not supported of in law or in fact and which allegedly served no purpose but to delay the ultimate resolution of the claim.
The court also noted that, despite the carrier’s claim of insufficient medical information, the Plaintiff claimed that, from the first medical records submission by the Plaintiff to the carrier, it took the carrier approximately 18 months to communicate a formal settlement offer.
Accordingly, based upon his analysis and after reviewing the record in a light most favorable to the Plaintiff as a non-moving party, Judge Mazzoni found that the there were genuine issues of material fact which precluded the court from granting the UIM carrier’s request for summary judgment.
Tuesday, May 14, 2013
Judge Mazzoni of Lackawanna County Addresses Notice Requirement in UM Case
In his recent April
5, 2013 decision in the case of State
Farm Mutual Automobile Insurance Company v. Roshan, No. 2010-Civil-3105
(C.P. Lacka. Co. 2013 Mazzoni, J.), Judge
Robert A. Mazzoni entered a verdict in favor of Plaintiff, State Farm, in a
nonjury proceeding concerning a declaratory judgment action involving a claim
for automobile insurance benefits with regards to a “miss and run
accident.”
The issue before the court was whether the Defendant injured
party complied with the notice requirements of the MVFRL 75 Pa. C.S.A. §1702
concerning an accident with “an unidentified motor vehicle.”
Judge Mazzoni found, based upon the record before the court, that the Defendant injured party failed to report the accident to “the police or proper governmental authority” within thirty (30) days as required under §1702. As such, a non-jury verdict in favor of State Farm was entered by the court.
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| Judge Robert A. Mazzoni Lackawanna County |
Judge Mazzoni found, based upon the record before the court, that the Defendant injured party failed to report the accident to “the police or proper governmental authority” within thirty (30) days as required under §1702. As such, a non-jury verdict in favor of State Farm was entered by the court.
Anyone desiring a copy of this Opinion may click this LINK.
Thursday, August 16, 2012
Judge Mazzoni of Lackawanna County Allows for Second IME in Extenuating Circumstances
In this case, the Defendant originally had the Plaintiff sent to a neurosurgeon for an IME relative to the Plaintiff’s alleged back injury.
During his deposition, the Plaintiff had also referenced a foot injury but the records showed that the Plaintiff had not treated for 3 ½ years after his discharge from treatment under the doctor that was treating that injury.
After the completion of the neurosurgeon IME, Plaintiff produced a letter report from the Plaintiff’s foot doctor in which that doctor concluded that the Plaintiff also was suffering from post-traumatic arthritis with respect to the foot as a result of the subject accident. As such, the defense proceeded to court on a motion for an IME with respect to the foot injury claim after the Plaintiff refused to agree to the same.
In allowing for the second IME for the foot injury, the Court reiterated while the Plaintiff identified foot pain during his deposition, neither the Plaintiff’s Complaint nor is Amended Complaint identified any foot injuries.
The Court also noted that, as of the Plaintiff’s deposition, where foot pain was mentioned, the Defendants were under the impression that the Plaintiff had had no further treatment for several years with regard to the foot. It was only after the Defendant received the report from the foot doctor as produced by Plaintiff’s counsel that the Defendant had become aware, for the first time, that the Plaintiff had not only returned to treatment with that doctor, but was also advancing a claim for post-traumatic arthritis.
In his decision, Judge Mazzoni distinguished the prior Lackawanna County Decision on a similar issue by Judge Carmen D. Minora in the case of Judge v. Solid Waste Services, Inc., 41 Pa. D. & C. 4th 225 (C.P. Lacka. Co. 1999).
In this Mehall case, Judge Mazzoni found that the Plaintiff’s failure to seasonable supplement his discovery responses had the net effect of keeping information from the defense with respect to the necessity of an IME with regards to the foot injury. Judge Mazzoni also found that, due to the exceptional circumstances of this case, the second IME addressing the Plaintiff’s foot injury would not be an unreasonable invasion of privacy.
As such, Judge Mazzoni affirmed the Discovery Master’s decision to allow the Defendants to secure an additional IME regarding the alleged foot injury. Judge Mazzoni stated that this decision was “simply an attempt to ‘level the playing field’ and remove any potential prejudice.”
Anyone desiring a copy of this Mehall v. Benedetto decision may contact me at dancummins@comcast.net.
I note that the prevailing defense attorneys in this matter were Attorney Robert L. Goodman, Esquire of Forry Ullman in Bethlehem, Pennsylvania and Attorney Kevin M. Higgins of Byrne, Neyhart & Higgins in Scranton. I send thanks for Attorney Goodman for bringing this decision to my attention.
Source of image: www.eschmanpt.com
Thursday, March 29, 2012
Judge Robert A. Mazzoni of Lackawanna County Upholds Bystander NIED Claim In Medical Malpractice Claim
In his recent Opinion of Reap v. Mercy Health Partners, No. 2011-CIV-2116 (C.P. Lack. Co. March 22, 2012, Mazzoni, J.), Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas addressed a variety of Preliminary Objections in a medical malpractice case.
Of note is the court’s decision to deny the Preliminary Objections on claims of recklessness and punitive damages. The court also denied the Preliminary Objections against the claims for negligent infliction of emotional distress (NIED) in the context of a medical malpractice case.
With regards to the negligent infliction of emotional distress claims, the Defendants asserted that the Plaintiff did not observe an identifiable, traumatic event that resulted in an injury to the Plaintiff’s well-being. More specifically, the Defendants asserted that the Plaintiff did not witness her daughter’s demise.
In denying the Preliminary Objections to the negligent infliction of emotional distress claims, the court relied on, in part, the case of Bloom v. DuBois Regional Medical Center, 597 A.2d 671 (Pa. Super. 1991).
Anyone desiring a copy of this decision may click here.
To view other Tort Talk posts on this NIED topic click here.
Of note is the court’s decision to deny the Preliminary Objections on claims of recklessness and punitive damages. The court also denied the Preliminary Objections against the claims for negligent infliction of emotional distress (NIED) in the context of a medical malpractice case.
With regards to the negligent infliction of emotional distress claims, the Defendants asserted that the Plaintiff did not observe an identifiable, traumatic event that resulted in an injury to the Plaintiff’s well-being. More specifically, the Defendants asserted that the Plaintiff did not witness her daughter’s demise.
In denying the Preliminary Objections to the negligent infliction of emotional distress claims, the court relied on, in part, the case of Bloom v. DuBois Regional Medical Center, 597 A.2d 671 (Pa. Super. 1991).
Anyone desiring a copy of this decision may click here.
To view other Tort Talk posts on this NIED topic click here.
Monday, November 28, 2011
Year End Review Article: AUTO LAW
Stop and Ask for Directions: Cases and Trends
Continuing Changes in Auto Law Arena in 2011 Result in Uncertainties
by
Daniel E. Cummins
The Pennsylvania Law Weekly
November 22, 2011
The year 2011 brought on a lot of changes in the auto law context such that litigators in this field may wish that they had a GPS to navigate through all of the nuances of the issues presented. What follows is a Mapquest of sorts outlining the important cases and trends of the past year in this area of the law.
Consolidation vs. Severance in Post-Koken Cases
Over the past year, there continued to be a growing split in the road of authority in the trial courts across the commonwealth in terms of whether post- Koken lawsuits, involving negligence claims against the third party tortfeasor and contract claims against the UIM carrier, should be allowed to proceed in a consolidated fashion or not.
Currently, there are at least 15 county courts of common pleas in favor of the consolidation of cases and at least 16 county trial courts in favor of the severance of post- Koken claims. To date, there still has not been any case that has gone up and provided appellate guidance on how to handle this issue.
On April 8, in the case of Bingham v. Poswistilo, Judge Terrence R. Nealon of the Lackawanna County Common Pleas Court issued the most thorough opinion to date on the issue of consolidation versus severance of third-party claims and UIM claims in post- Koken matters.
Concisely, Nealon held in Bingham that tort and UIM claims can be joined under Rule 2229(b) since (1) the tortfeasor and UIM insurer may be "separately" liable to the plaintiff, that is, the tortfeasor up to the liability coverage limits and the UIM carrier for any amount in excess of the liability coverage, (2) both claims arise out of the same occurrence and (3) both claims involve common questions of fact or law affecting the liabilities of the tortfeasor and UIM insurer.
After reviewing the split of authority on the issue of consolidation versus severance of claims from around the Commonwealth, as well as the split of authority on the issue in his own county of Lackawanna, Nealon came down on the side of allowing for the consolidation of such claims, largely as a promotion of judicial economy in the discovery processes.
At the preliminary objections stage of the matter, the Bingham court felt that the better approach was to leave the cases consolidated for at least discovery purposes as a matter of judicial economy and to lessen the burden and expenses on the parties and the court.
As for the evidentiary issue(s) involving insurance that may come into play when a consolidated case of a third-party claim and a UIM claim reaches trial, Nealon concluded that issue was a later matter to be determined by way of a motion for bifurcation of the trial presented to the presiding trial judge rather than a matter to be decided at the preliminary objections stage.
On June 10, Lackawanna County Judge Robert A. Mazzoni followed Nealon's decision in Bingham with his own decision in a case where I represented the UIM carrier, Richards v. McPhillips.
A detour in this case separating it from the normal route of taken by post- Koken cases on the consolidation versus severance issue was that there were punitive damages allegations asserted against the third party tortfeasor based upon the allegation that the tortfeasor was operating his vehicle under the influence of heroin and/or was otherwise impaired.
In Richards, Mazzoni ruled the case should remain consolidated for purposes of discovery as a matter of judicial economy. With regards to the punitive damages issue, the court felt that the claims against the tortfeasor and the UIM carrier were separate and distinct and, "[i]n in carefully managed trial, the trial judge can minimize and/or eliminate the potential for prejudice or confusion" against the UIM carrier with respect to the punitive damages claims asserted against the co-defendant tortfeasor."
However, as did Nealon in his prior decision, Mazzoni stated, although the case was kept consolidated for discovery purposes, he would leave the door open for the presentation of motion for bifurcation of the third party negligence claims and the UIM claims at the time of trial.
Proper Venue in Post-Koken Cases
Two years ago, the Pennsylvania Superior Court upheld the UIM carrier's forum selection clause requiring a post- Koken UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident in the case of O'Hara v. The First Liberty Ins. Corp.
While the O'Hara decision served to answer the question of proper venue in a post- Koken case where the UIM carrier's policy contained a forum selection clause dictating where the venue should be, an open issue remained as to proper venue in post-Koken cases where there was no forum selection clause found in the UIM policy at issue.
That open question was answered this past year on July 25 when the state Superior Court handed down its opinion in the post- Koken case of Sehl v. Neff. For full disclosure purposes, I note that I wrote the amicus curiae brief for the Pennsylvania Defense Institute in this matter.
In this post- Koken venue case in which the UIM policy did not have a forum selection clause, the plaintiff filed suit in Philadelphia County even though the tortfeasor defendant did not reside and was not served in Philadelphia County and even though the accident did not occur in Philadelphia County.
The plaintiff argued that since the defendant UIM carrier could be sued in any county in Pennsylvania under the venue rule of Pa.R.C.P. 1006 and 2179 on the basis that the carrier conducted business in every county, venue for the claims against the defendant tortfeasor could also be joined and filed in any county along with that UIM claim. The Superior Court rejected this notion.
In so ruling, the Superior Court also disagreed with the plaintiff's contention that the defendant driver and the UIM carrier could be considered to be jointly and severally liable under the venue rules so as to support the plaintiff's effort to sue both parties in a single county of the plaintiff's choice. To the contrary, the Superior Court agreed with the trial court's ruling that the tort claims against the defendant driver were separate and distinct from the contract claims against the UIM carrier.
As such, the court found proper venue in cases where the UIM carrier's policy did not have a forum selection clause would be proper in the county where the defendant tortfeasor could be served, where the defendant tortfeasor resided, or where the accident occurred as venue against the UIM carrier was also proper in those counties as well.
Household Exclusion Upheld, Again
On April 28, the Pennsylvania Supreme Court handed down a 3-3 plurality decision, with Justice Joan Orie Melvin having recused herself from the matter, in the household exclusion case of Geico v. Ayers, which decision served to affirm the Superior Court's ruling that an insured was barred by the exclusion from collecting stacked UIM benefits to compensate him for injuries sustained in a motor vehicle accident.
In this matter, the Geico insured had two motorcycles and two pickup trucks on separate policies.
Litigators were anxious to see how the high court would rule in Geico v. Ayers, a case the Supreme Court accepted to address whether an insurance company can deny inter-policy stacking to an insured who has all of his or her vehicles insured through the same company on separate policies but had not waived stacking.
The plaintiff, who was involved in an accident while on one of the motorcycles, was denied UIM benefits under the separate policy insuring the pickup trucks. Geico cited the household exclusion in support of the denial of benefits.
The household exclusion basically states that the insurance company that issued the policy does not have to provide coverage for accidents involving another vehicle in the insured's household; the vehicle is covered by another, different insurance company.
The plaintiff has argued that the exclusion was invalid in this matter since Geico insured all the vehicles but had required the injured party put the motorcycles on a separate policy. Stated otherwise, the injured party apparently would have kept all of the vehicles on a single policy for stacking purposes if permitted to do so.
The trial court had agreed with the injured party's argument and invalidated the exclusion. The Superior Court reversed in a memorandum decision. The Supreme Court's plurality opinion serves to affirm and uphold Superior Court's decision upholding the carrier's application of the household exclusion to deny stacked UIM benefits in this context.
UIM Worker's Compensation Exclusion Voided
In the case of Heller v. Pennsylvania League of Cities and Municipalities, a 2-1 Commonwealth Court panel previously ruled that a person receiving workers' compensation benefits may be subject to a workers' compensation exclusion and was thereby precluded from also recovering underinsured motorist benefits for a work-related car accident. This decision was recently reversed by the state Supreme Court under Heller.
The Heller case involved a police officer who had been injured in a motor vehicle accident during the course of his employment and received workers' compensation benefits.
In response to a declaratory judgment action on the issue of coverage, the majority of the Supreme Court basically ruled in Heller that, although the workers' compensation exclusion in the employer's liability policy did not violate any express provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law or the Workers' Compensation Act, the "workers' compensation exclusion in an employer-sponsored insurance policy violates public policy and is, therefore, unenforceable."
More specifically, the majority found that to enforce the exclusion would render the purchased coverage illusory. In a strong dissent, Justice Thomas Saylor cautioned against the judicial rewriting of insurance contracts and noted that the striking of clear contractual provisions should be the exception rather than the rule lest the floodgates be opened based upon public policy arguments. Saylor suggests that these types of issues should be left for the legislature or administrative agencies to struggle with.
No UIM Benefits where Workers' Compensation Applies
While a specific workers' compensation exclusion was voided in Heller where the exclusion appeared in an employer's UIM policy, a challenge against an injured party's ability to recover both UIM was upheld last year in the separate context involving an injured employee's personal automobile insurance policy.
In the case of Erie Ins. Exchange v. Conley, the Superior Court affirmed a trial court decision by Allegheny County Court of Common Pleas Judge Alan D. Hertzberg in which the trial court ruled in favor of the carrier's denial of an injured party's claim for UIM benefits where the injured party had previously received workers' compensation benefits for the same injury.
Interestingly, Nealon issued his own decision on the same issue on the same day as Hertzberg's decision — and with the same result — in the case of Petrochko v. Nationwide.
In granting the motion for summary judgment in favor of the UIM carrier, Nealon noted that the issue presented had not been previously addressed by any appellate court in Pennsylvania.
Hertzberg's decision went up the appellate latter first and was affirmed by the Superior Court. Nealon's decision in Petrochko on this issue was also recently affirmed by the Superior Court in a nonprecedential opinion in which the appellate court basically adopted Nealon's opinion.
These courts all held that where an injured party was entitled to recover workers' compensation benefits as a result of the subject accident, that injured party could not also recover UIM benefits under the provisions of the UIM policy.
More specifically, the courts relied upon Pennsylvania law and the provisions of the insurance policies at issue that limited UIM coverage to insureds who "are legally entitled to recover damages" from the underinsured tortfeasor.
Since the third party tortfeasor in this case was immune from negligence liability to the injured party who was hurt during the scope and course of his employment under an application of the exclusive remedy provision of the Workers' Compensation Act, the injured party was not legally entitled to recover compensatory damages from the underinsured tortfeasor. Accordingly, it follows that no UIM coverage could be had under these circumstances.
Both Nealon and Hertzberg did note in their respective decisions that, where the tortfeasor is a third party not associated with the injured party's employment, UM/UIM benefits may be pursued under appropriate circumstances.
Regular Use Exclusion Upheld and Clarified
In its decision in Williams v. Geico, the state Supreme Court affirmed the lower courts' decisions that the "regular use" exclusion contained in a personal automobile insurance policy was valid to preclude payment of underinsured motorist benefits to a police officer injured in the course of employment while operating a police vehicle.
In Williams, the injured party police officer was injured in a car accident on the job and presented a UIM claim to his own personal insurance carrier, Geico, because the Pennsylvania State Police did not carry UM/UIM coverage on its vehicles.
Geico applied the "regular use" exclusion under its policy to deny coverage. In this case, the injured party police officer was challenging that exclusion and Geico's denial.
In denying coverage, the Supreme Court relied upon the all-American adage that you can't get something for nothing. In other words, since the police officer did not pay a premium to Geico for any UIM coverage on the police car he was driving at the time of the accident, the officer could not recover UIM benefits for injuries sustained as a result of an accident involving the police vehicle under that Geico policy that separately covered his personal vehicle.
The decision by the Supreme Court obviously has a major impact on all first responders, from police officers, EMTs and firefighters, who may all be driving out there without any UIM coverage under the current status of the law. With the Pennsylvania courts being unwilling or unable to remedy this situation, it remains to be seen whether the legislature will act on this issue.
Liability of PennDOT for Highway Defects
On Jan. 19, the Commonwealth Court issued an opinion in the case of Brown v. PennDOT, in which the court addressed the issue of sovereign immunity for PennDOT in an automobile accident case in which there were allegations that PennDOT was liable for failing to install rumble strips along a curved portion of the roadway where the injured party left the road and was involved in an accident.
The case is noteworthy in that the Commonwealth Court agreed with the plaintiff's position that rumble strips, where they have been installed, must be considered part of the road.
However, in favor of PennDOT, the court also found that where rumble strips had not been installed, as was the case in this matter, the absence of rumble strips did not create a defect of the highway, and PennDOT had no duty to install them.
The Brown decision can be read in conjunction with the Commonwealth Court's recent decision in the case of Lambert v. Katz, with regards to the liability of PennDOT for conditions on highways.
In Lambert, the Commonwealth Court held that, since the shoulder of roads are not considered portions of "roadways" lanes for travel, the condition of the shoulder of a road or the lack of a shoulder, cannot constitute a dangerous condition of highway for which PennDOT can be found liable.
Limited Tort
Two widely publicized trial court defense favorable limited tort decisions came down over the past year.
On Feb. 2, Judge Linda Wallach Miller of the Monroe County Common Pleas Court entered a summary judgment in favor of the defendants in the limited tort case of Stout v. Deleo.
The Stout case involved a plaintiff who lost control of his vehicle on an icy roadway and then was struck by another vehicle. The plaintiff alleged injuries to his shoulder, neck and back. He also noted symptoms down his right arm.
According to Miller's opinion, the plaintiff did not go to the emergency room and did not begin to treat until he visited his family doctor a few days after the accident. The treatment thereafter was minimal and the plaintiff only took over-the-counter Motrin on occasion for his symptoms. Miller also noted that the plaintiff only missed three shifts of work as a police officer but was otherwise able to complete his job duties after the accident.
The court was unimpressed with the plaintiff's claims of limitations in his ability to complete recreational activities and his claims of sleep disturbance from his ongoing pain symptoms. In the end, summary judgment was entered and the case was dismissed.
In the separate limited tort case of Phillipi v. Carey, Judge Gary P. Caruso of the Westmoreland County Common Pleas Court granted summary judgment in favor the defendant.
According to the opinion, the court found that the plaintiff's injuries were not serious where strain injuries to the neck and back were alleged along with some type of shock and nervous disorder as a result of the accident.
The court noted that, although the plaintiff offered evidence that his standing and walking abilities were affected, there is no evidence of any restrictions as a result of the injuries. Accordingly, the defendants were granted summary judgment as the court found that no reasonable minds on a jury could differ that the plaintiff had not sustained a "serious injury" as that term is defined in this context.
In the coming year, trends to watch for in the auto law context include the continuing development of the post- Koken common law, the increasing utilization of social media discovery efforts by litigators and the impact of the new Fair Share Act.
Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/.
Continuing Changes in Auto Law Arena in 2011 Result in Uncertainties
by
Daniel E. Cummins
The Pennsylvania Law Weekly
November 22, 2011
The year 2011 brought on a lot of changes in the auto law context such that litigators in this field may wish that they had a GPS to navigate through all of the nuances of the issues presented. What follows is a Mapquest of sorts outlining the important cases and trends of the past year in this area of the law.
Consolidation vs. Severance in Post-Koken Cases
Over the past year, there continued to be a growing split in the road of authority in the trial courts across the commonwealth in terms of whether post- Koken lawsuits, involving negligence claims against the third party tortfeasor and contract claims against the UIM carrier, should be allowed to proceed in a consolidated fashion or not.
Currently, there are at least 15 county courts of common pleas in favor of the consolidation of cases and at least 16 county trial courts in favor of the severance of post- Koken claims. To date, there still has not been any case that has gone up and provided appellate guidance on how to handle this issue.
On April 8, in the case of Bingham v. Poswistilo, Judge Terrence R. Nealon of the Lackawanna County Common Pleas Court issued the most thorough opinion to date on the issue of consolidation versus severance of third-party claims and UIM claims in post- Koken matters.
Concisely, Nealon held in Bingham that tort and UIM claims can be joined under Rule 2229(b) since (1) the tortfeasor and UIM insurer may be "separately" liable to the plaintiff, that is, the tortfeasor up to the liability coverage limits and the UIM carrier for any amount in excess of the liability coverage, (2) both claims arise out of the same occurrence and (3) both claims involve common questions of fact or law affecting the liabilities of the tortfeasor and UIM insurer.
After reviewing the split of authority on the issue of consolidation versus severance of claims from around the Commonwealth, as well as the split of authority on the issue in his own county of Lackawanna, Nealon came down on the side of allowing for the consolidation of such claims, largely as a promotion of judicial economy in the discovery processes.
At the preliminary objections stage of the matter, the Bingham court felt that the better approach was to leave the cases consolidated for at least discovery purposes as a matter of judicial economy and to lessen the burden and expenses on the parties and the court.
As for the evidentiary issue(s) involving insurance that may come into play when a consolidated case of a third-party claim and a UIM claim reaches trial, Nealon concluded that issue was a later matter to be determined by way of a motion for bifurcation of the trial presented to the presiding trial judge rather than a matter to be decided at the preliminary objections stage.
On June 10, Lackawanna County Judge Robert A. Mazzoni followed Nealon's decision in Bingham with his own decision in a case where I represented the UIM carrier, Richards v. McPhillips.
A detour in this case separating it from the normal route of taken by post- Koken cases on the consolidation versus severance issue was that there were punitive damages allegations asserted against the third party tortfeasor based upon the allegation that the tortfeasor was operating his vehicle under the influence of heroin and/or was otherwise impaired.
In Richards, Mazzoni ruled the case should remain consolidated for purposes of discovery as a matter of judicial economy. With regards to the punitive damages issue, the court felt that the claims against the tortfeasor and the UIM carrier were separate and distinct and, "[i]n in carefully managed trial, the trial judge can minimize and/or eliminate the potential for prejudice or confusion" against the UIM carrier with respect to the punitive damages claims asserted against the co-defendant tortfeasor."
However, as did Nealon in his prior decision, Mazzoni stated, although the case was kept consolidated for discovery purposes, he would leave the door open for the presentation of motion for bifurcation of the third party negligence claims and the UIM claims at the time of trial.
Proper Venue in Post-Koken Cases
Two years ago, the Pennsylvania Superior Court upheld the UIM carrier's forum selection clause requiring a post- Koken UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident in the case of O'Hara v. The First Liberty Ins. Corp.
While the O'Hara decision served to answer the question of proper venue in a post- Koken case where the UIM carrier's policy contained a forum selection clause dictating where the venue should be, an open issue remained as to proper venue in post-Koken cases where there was no forum selection clause found in the UIM policy at issue.
That open question was answered this past year on July 25 when the state Superior Court handed down its opinion in the post- Koken case of Sehl v. Neff. For full disclosure purposes, I note that I wrote the amicus curiae brief for the Pennsylvania Defense Institute in this matter.
In this post- Koken venue case in which the UIM policy did not have a forum selection clause, the plaintiff filed suit in Philadelphia County even though the tortfeasor defendant did not reside and was not served in Philadelphia County and even though the accident did not occur in Philadelphia County.
The plaintiff argued that since the defendant UIM carrier could be sued in any county in Pennsylvania under the venue rule of Pa.R.C.P. 1006 and 2179 on the basis that the carrier conducted business in every county, venue for the claims against the defendant tortfeasor could also be joined and filed in any county along with that UIM claim. The Superior Court rejected this notion.
In so ruling, the Superior Court also disagreed with the plaintiff's contention that the defendant driver and the UIM carrier could be considered to be jointly and severally liable under the venue rules so as to support the plaintiff's effort to sue both parties in a single county of the plaintiff's choice. To the contrary, the Superior Court agreed with the trial court's ruling that the tort claims against the defendant driver were separate and distinct from the contract claims against the UIM carrier.
As such, the court found proper venue in cases where the UIM carrier's policy did not have a forum selection clause would be proper in the county where the defendant tortfeasor could be served, where the defendant tortfeasor resided, or where the accident occurred as venue against the UIM carrier was also proper in those counties as well.
Household Exclusion Upheld, Again
On April 28, the Pennsylvania Supreme Court handed down a 3-3 plurality decision, with Justice Joan Orie Melvin having recused herself from the matter, in the household exclusion case of Geico v. Ayers, which decision served to affirm the Superior Court's ruling that an insured was barred by the exclusion from collecting stacked UIM benefits to compensate him for injuries sustained in a motor vehicle accident.
In this matter, the Geico insured had two motorcycles and two pickup trucks on separate policies.
Litigators were anxious to see how the high court would rule in Geico v. Ayers, a case the Supreme Court accepted to address whether an insurance company can deny inter-policy stacking to an insured who has all of his or her vehicles insured through the same company on separate policies but had not waived stacking.
The plaintiff, who was involved in an accident while on one of the motorcycles, was denied UIM benefits under the separate policy insuring the pickup trucks. Geico cited the household exclusion in support of the denial of benefits.
The household exclusion basically states that the insurance company that issued the policy does not have to provide coverage for accidents involving another vehicle in the insured's household; the vehicle is covered by another, different insurance company.
The plaintiff has argued that the exclusion was invalid in this matter since Geico insured all the vehicles but had required the injured party put the motorcycles on a separate policy. Stated otherwise, the injured party apparently would have kept all of the vehicles on a single policy for stacking purposes if permitted to do so.
The trial court had agreed with the injured party's argument and invalidated the exclusion. The Superior Court reversed in a memorandum decision. The Supreme Court's plurality opinion serves to affirm and uphold Superior Court's decision upholding the carrier's application of the household exclusion to deny stacked UIM benefits in this context.
UIM Worker's Compensation Exclusion Voided
In the case of Heller v. Pennsylvania League of Cities and Municipalities, a 2-1 Commonwealth Court panel previously ruled that a person receiving workers' compensation benefits may be subject to a workers' compensation exclusion and was thereby precluded from also recovering underinsured motorist benefits for a work-related car accident. This decision was recently reversed by the state Supreme Court under Heller.
The Heller case involved a police officer who had been injured in a motor vehicle accident during the course of his employment and received workers' compensation benefits.
In response to a declaratory judgment action on the issue of coverage, the majority of the Supreme Court basically ruled in Heller that, although the workers' compensation exclusion in the employer's liability policy did not violate any express provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law or the Workers' Compensation Act, the "workers' compensation exclusion in an employer-sponsored insurance policy violates public policy and is, therefore, unenforceable."
More specifically, the majority found that to enforce the exclusion would render the purchased coverage illusory. In a strong dissent, Justice Thomas Saylor cautioned against the judicial rewriting of insurance contracts and noted that the striking of clear contractual provisions should be the exception rather than the rule lest the floodgates be opened based upon public policy arguments. Saylor suggests that these types of issues should be left for the legislature or administrative agencies to struggle with.
No UIM Benefits where Workers' Compensation Applies
While a specific workers' compensation exclusion was voided in Heller where the exclusion appeared in an employer's UIM policy, a challenge against an injured party's ability to recover both UIM was upheld last year in the separate context involving an injured employee's personal automobile insurance policy.
In the case of Erie Ins. Exchange v. Conley, the Superior Court affirmed a trial court decision by Allegheny County Court of Common Pleas Judge Alan D. Hertzberg in which the trial court ruled in favor of the carrier's denial of an injured party's claim for UIM benefits where the injured party had previously received workers' compensation benefits for the same injury.
Interestingly, Nealon issued his own decision on the same issue on the same day as Hertzberg's decision — and with the same result — in the case of Petrochko v. Nationwide.
In granting the motion for summary judgment in favor of the UIM carrier, Nealon noted that the issue presented had not been previously addressed by any appellate court in Pennsylvania.
Hertzberg's decision went up the appellate latter first and was affirmed by the Superior Court. Nealon's decision in Petrochko on this issue was also recently affirmed by the Superior Court in a nonprecedential opinion in which the appellate court basically adopted Nealon's opinion.
These courts all held that where an injured party was entitled to recover workers' compensation benefits as a result of the subject accident, that injured party could not also recover UIM benefits under the provisions of the UIM policy.
More specifically, the courts relied upon Pennsylvania law and the provisions of the insurance policies at issue that limited UIM coverage to insureds who "are legally entitled to recover damages" from the underinsured tortfeasor.
Since the third party tortfeasor in this case was immune from negligence liability to the injured party who was hurt during the scope and course of his employment under an application of the exclusive remedy provision of the Workers' Compensation Act, the injured party was not legally entitled to recover compensatory damages from the underinsured tortfeasor. Accordingly, it follows that no UIM coverage could be had under these circumstances.
Both Nealon and Hertzberg did note in their respective decisions that, where the tortfeasor is a third party not associated with the injured party's employment, UM/UIM benefits may be pursued under appropriate circumstances.
Regular Use Exclusion Upheld and Clarified
In its decision in Williams v. Geico, the state Supreme Court affirmed the lower courts' decisions that the "regular use" exclusion contained in a personal automobile insurance policy was valid to preclude payment of underinsured motorist benefits to a police officer injured in the course of employment while operating a police vehicle.
In Williams, the injured party police officer was injured in a car accident on the job and presented a UIM claim to his own personal insurance carrier, Geico, because the Pennsylvania State Police did not carry UM/UIM coverage on its vehicles.
Geico applied the "regular use" exclusion under its policy to deny coverage. In this case, the injured party police officer was challenging that exclusion and Geico's denial.
In denying coverage, the Supreme Court relied upon the all-American adage that you can't get something for nothing. In other words, since the police officer did not pay a premium to Geico for any UIM coverage on the police car he was driving at the time of the accident, the officer could not recover UIM benefits for injuries sustained as a result of an accident involving the police vehicle under that Geico policy that separately covered his personal vehicle.
The decision by the Supreme Court obviously has a major impact on all first responders, from police officers, EMTs and firefighters, who may all be driving out there without any UIM coverage under the current status of the law. With the Pennsylvania courts being unwilling or unable to remedy this situation, it remains to be seen whether the legislature will act on this issue.
Liability of PennDOT for Highway Defects
On Jan. 19, the Commonwealth Court issued an opinion in the case of Brown v. PennDOT, in which the court addressed the issue of sovereign immunity for PennDOT in an automobile accident case in which there were allegations that PennDOT was liable for failing to install rumble strips along a curved portion of the roadway where the injured party left the road and was involved in an accident.
The case is noteworthy in that the Commonwealth Court agreed with the plaintiff's position that rumble strips, where they have been installed, must be considered part of the road.
However, in favor of PennDOT, the court also found that where rumble strips had not been installed, as was the case in this matter, the absence of rumble strips did not create a defect of the highway, and PennDOT had no duty to install them.
The Brown decision can be read in conjunction with the Commonwealth Court's recent decision in the case of Lambert v. Katz, with regards to the liability of PennDOT for conditions on highways.
In Lambert, the Commonwealth Court held that, since the shoulder of roads are not considered portions of "roadways" lanes for travel, the condition of the shoulder of a road or the lack of a shoulder, cannot constitute a dangerous condition of highway for which PennDOT can be found liable.
Limited Tort
Two widely publicized trial court defense favorable limited tort decisions came down over the past year.
On Feb. 2, Judge Linda Wallach Miller of the Monroe County Common Pleas Court entered a summary judgment in favor of the defendants in the limited tort case of Stout v. Deleo.
The Stout case involved a plaintiff who lost control of his vehicle on an icy roadway and then was struck by another vehicle. The plaintiff alleged injuries to his shoulder, neck and back. He also noted symptoms down his right arm.
According to Miller's opinion, the plaintiff did not go to the emergency room and did not begin to treat until he visited his family doctor a few days after the accident. The treatment thereafter was minimal and the plaintiff only took over-the-counter Motrin on occasion for his symptoms. Miller also noted that the plaintiff only missed three shifts of work as a police officer but was otherwise able to complete his job duties after the accident.
The court was unimpressed with the plaintiff's claims of limitations in his ability to complete recreational activities and his claims of sleep disturbance from his ongoing pain symptoms. In the end, summary judgment was entered and the case was dismissed.
In the separate limited tort case of Phillipi v. Carey, Judge Gary P. Caruso of the Westmoreland County Common Pleas Court granted summary judgment in favor the defendant.
According to the opinion, the court found that the plaintiff's injuries were not serious where strain injuries to the neck and back were alleged along with some type of shock and nervous disorder as a result of the accident.
The court noted that, although the plaintiff offered evidence that his standing and walking abilities were affected, there is no evidence of any restrictions as a result of the injuries. Accordingly, the defendants were granted summary judgment as the court found that no reasonable minds on a jury could differ that the plaintiff had not sustained a "serious injury" as that term is defined in this context.
In the coming year, trends to watch for in the auto law context include the continuing development of the post- Koken common law, the increasing utilization of social media discovery efforts by litigators and the impact of the new Fair Share Act.
Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/.
Sunday, August 14, 2011
Another Lackawanna County Decision by Judge Mazzoni in Favor of Consolidation of Post-Koken Claims
On August 5, 2011, in the case of Knott v. Walters and Nationwide Mutual Automobile Ins. Co., No. 2010 CV 4745 (Lacka. Co. Aug. 5, 2011, Mazzoni, J.), Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas issued another decision, by way of a detailed Order, in favor of the consolidation of post-Koken cases, at least through the pre-trial stage. In the Order, the court denied the preliminary objections filed by the tortfeasor defendant claiming, in part, a misjoinder of actions under the Pennsylvania Rules of Civil Procedure.
In so ruling, Judge Mazzoni cited to his own previous Opinion on the same issue in the case of Richards v. McPhillips and Progressive Ins. Co., No. 2010 CV 7020 (Lacka. Co. June 10, 2011, Mazzoni, J.) as well as the Opinion of fellow Lackawanna County Judge Terrence Nealon in the case of Bingham v. Voswistilo, 2010 CV 6026 (Lacka. Co. April 8, 2011 Nealon, J.).
The majority rule in Lackawanna County on this issue is that the cases will remain consolidated at least up through the time of trial. In their respective decisions, both Judge Mazzoni and Judge Nealon expressly state that, at the time of trial, the assigned trial judge shall retain the discretion to address motions to bifurcate or sever the claims presented.
I thank the prevailing Plaintiff's attorney in the Knott case, Attorney Doug Yazinski of the Pisanchyn Law Firm, for bringing the Knott decision to my attention.
Anyone desiring a copy of any of the decisions noted above may contact me at dancummins@comcast.net.
In so ruling, Judge Mazzoni cited to his own previous Opinion on the same issue in the case of Richards v. McPhillips and Progressive Ins. Co., No. 2010 CV 7020 (Lacka. Co. June 10, 2011, Mazzoni, J.) as well as the Opinion of fellow Lackawanna County Judge Terrence Nealon in the case of Bingham v. Voswistilo, 2010 CV 6026 (Lacka. Co. April 8, 2011 Nealon, J.).
The majority rule in Lackawanna County on this issue is that the cases will remain consolidated at least up through the time of trial. In their respective decisions, both Judge Mazzoni and Judge Nealon expressly state that, at the time of trial, the assigned trial judge shall retain the discretion to address motions to bifurcate or sever the claims presented.
I thank the prevailing Plaintiff's attorney in the Knott case, Attorney Doug Yazinski of the Pisanchyn Law Firm, for bringing the Knott decision to my attention.
Anyone desiring a copy of any of the decisions noted above may contact me at dancummins@comcast.net.
Tuesday, July 19, 2011
Judge Mazzoni of Lackawanna County Upholds Criminal Acts Exclusion in Homeowner's Policy
In the case of Donegal Mutual Ins. Co. v. Lochner, Lees, et. al., No. 2008-CIV-6100 (Lacka. Co. March 15, 2011, Mazzoni, J.), Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas upheld a criminal acts exclusion found in a Donegal Mutual Insurance Company homeowner’s insurance policy as clearly and unambiguously precluding coverage in this matter.
In this declaratory judgment action on a coverage issue, the underlying lawsuit involved a wrongful death and survival action for the fatal injuries of the decedent, allegedly caused by the son of the Donegal Insurance insureds. The decedent and the son had been involved in a physical altercation which resulted in fatal injuries to the decedent. When the decedent's estate sued the son and other Defendants, coverage was sought by the Defendants under the parent’s homeowner’s insurance policy with Donegal.
In agreeing with Donegal that coverage was indeed precluded by the criminal acts exclusion under the policy, the Court pointed to the fact that the son had pled guilty to involuntary manslaughter.
Anyone desiring a copy of this decision of Donegal v. Lochner may contact me at dancummins@comcast.net.
In this declaratory judgment action on a coverage issue, the underlying lawsuit involved a wrongful death and survival action for the fatal injuries of the decedent, allegedly caused by the son of the Donegal Insurance insureds. The decedent and the son had been involved in a physical altercation which resulted in fatal injuries to the decedent. When the decedent's estate sued the son and other Defendants, coverage was sought by the Defendants under the parent’s homeowner’s insurance policy with Donegal.
In agreeing with Donegal that coverage was indeed precluded by the criminal acts exclusion under the policy, the Court pointed to the fact that the son had pled guilty to involuntary manslaughter.
Anyone desiring a copy of this decision of Donegal v. Lochner may contact me at dancummins@comcast.net.
Thursday, June 16, 2011
Latest Post-Koken Decision Out of Lackawanna County
On June 10, 2011, Judge Robert A. Mazzoni issued the latest Lackawanna County post-Koken decision on the issue of severance versus consolidation in the case of Richards v. McPhillips and Progressive Insurance Company, 2010-CIV-7020 (Lacka. Co. June 10, 2011, Mazzoni, J.).
A wrinkle in this case separating the facts from previous post-Koken cases on this issue is that there were punitive damages allegations asserted against the third party tortfeasor on the basis that the tortfeasor was operating his vehicle allegedly under the influence of heroin and/or as otherwise impaired.
As defense counsel for Progressive, I asserted the various reasons supporting a finding of a misjoinder of actions and a need for severance as set forth in the various post-Koken cases that have come down before. It was additionally emphasized that Progressive, as the UIM carrier in this matter, would be prejudiced at trial by the danger of an increased verdict from a jury inflamed by the tortfeasor’s allegedly driving under the influence of heroin and/or other substances. Nevertheless, being aware that the majority rule in Lackawanna County was in favor of consolidation, we advised the court that we were not opposed to the case remaining consolidated for discovery purposes and that our focus was primarily on securing a severance of the claims for trial purposes.
In his decision in Richards, Judge Mazzoni provided a nice summary of the case law to date and additionally relied upon Judge Terrence R. Nealon’s recent and thorough decision in this regard in the case of Bingham v. Poswistilo and Erie Insurance, 2010-CIV-6026 (Lacka. Co. April 8, 2011, Nealon, J.), to come to a ruling that this case will remain consolidated for purposes of discovery.
Judge Mazzoni noted in his opinion that the fact that the Plaintiff has alleged a claim for punitive damages against the third party tortfeasor did not require a change the result. The court felt that the claims against the tortfeasor and the UIM carrier are separate and distinct and, “[i]n in carefully managed trial, the Trial Judge can minimize and/or eliminate the potential for prejudice or confusion.”
However, Judge Mazzoni did agree to leave the door open for a bifurcation of the third party negligence claims and the UIM claims at the time of trial. Judge Mazzoni concluded his opinion with the following paragraph:
“It is important to note that this Court shares Judge Nealon’s concern over the scope of decisions in the post Koken cases. It is important to note that the intent of this Court’s Memorandum and Order is simply to direct and guide the parties through the Pre-Trial stage. This opinion is not intended to strip the trial
judge of his or her discretion. Accordingly, for purposes of trial, this opinion should only be instructive and not binding upon the Trial Judge. This Court will defer to the judgment of the Trial Judge who may avail himself/herself to a variety of options including severance as comprehensively discussed in Judge Nealon’s decision in Bingham.”
Anyone desiring a copy of this opinion my contact me at dancummins@comcast.net.
A wrinkle in this case separating the facts from previous post-Koken cases on this issue is that there were punitive damages allegations asserted against the third party tortfeasor on the basis that the tortfeasor was operating his vehicle allegedly under the influence of heroin and/or as otherwise impaired.
As defense counsel for Progressive, I asserted the various reasons supporting a finding of a misjoinder of actions and a need for severance as set forth in the various post-Koken cases that have come down before. It was additionally emphasized that Progressive, as the UIM carrier in this matter, would be prejudiced at trial by the danger of an increased verdict from a jury inflamed by the tortfeasor’s allegedly driving under the influence of heroin and/or other substances. Nevertheless, being aware that the majority rule in Lackawanna County was in favor of consolidation, we advised the court that we were not opposed to the case remaining consolidated for discovery purposes and that our focus was primarily on securing a severance of the claims for trial purposes.
In his decision in Richards, Judge Mazzoni provided a nice summary of the case law to date and additionally relied upon Judge Terrence R. Nealon’s recent and thorough decision in this regard in the case of Bingham v. Poswistilo and Erie Insurance, 2010-CIV-6026 (Lacka. Co. April 8, 2011, Nealon, J.), to come to a ruling that this case will remain consolidated for purposes of discovery.
Judge Mazzoni noted in his opinion that the fact that the Plaintiff has alleged a claim for punitive damages against the third party tortfeasor did not require a change the result. The court felt that the claims against the tortfeasor and the UIM carrier are separate and distinct and, “[i]n in carefully managed trial, the Trial Judge can minimize and/or eliminate the potential for prejudice or confusion.”
However, Judge Mazzoni did agree to leave the door open for a bifurcation of the third party negligence claims and the UIM claims at the time of trial. Judge Mazzoni concluded his opinion with the following paragraph:
“It is important to note that this Court shares Judge Nealon’s concern over the scope of decisions in the post Koken cases. It is important to note that the intent of this Court’s Memorandum and Order is simply to direct and guide the parties through the Pre-Trial stage. This opinion is not intended to strip the trial
judge of his or her discretion. Accordingly, for purposes of trial, this opinion should only be instructive and not binding upon the Trial Judge. This Court will defer to the judgment of the Trial Judge who may avail himself/herself to a variety of options including severance as comprehensively discussed in Judge Nealon’s decision in Bingham.”
Anyone desiring a copy of this opinion my contact me at dancummins@comcast.net.
Wednesday, May 11, 2011
Judge Robert Mazzoni of Lackawanna County Issues Coverage Decision in Favor of Carrier
On March 15, 2011, Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas issued a coverage decision in favor of the carrier in the case of Donegal Mut. Ins. Co. v. Lochner, No. 2008-CV-6110 (Lacka. Co. 2011 Mazzoni, J.).
In this matter Donegal Mutual Insurance Company filed a declaratory judgment action, and this motion for summary judgment, seeking a judicial declaration that it did not have a duty to defend or indemnify in a case where its insured fatally injured another person in a physical altercation.
Judge Mazzoni found that the homeowner's insurance policy at issue clearly and unambiguously precluded coverage pursuant to a Criminal Acts Exclusion. In this case, the insured had pled guilty to involuntary manslaughter in a companion criminal matter.
Anyone desiring a copy of this Opinion by Judge Mazzoni may contact me at dancummins@comcast.net.
In this matter Donegal Mutual Insurance Company filed a declaratory judgment action, and this motion for summary judgment, seeking a judicial declaration that it did not have a duty to defend or indemnify in a case where its insured fatally injured another person in a physical altercation.
Judge Mazzoni found that the homeowner's insurance policy at issue clearly and unambiguously precluded coverage pursuant to a Criminal Acts Exclusion. In this case, the insured had pled guilty to involuntary manslaughter in a companion criminal matter.
Anyone desiring a copy of this Opinion by Judge Mazzoni may contact me at dancummins@comcast.net.
Tuesday, February 22, 2011
Lackawanna County Judge Robert A. Mazzoni Agrees to Join Panel of Judicial Speakers at Upcoming Tort Talk Expo 2011
I am pleased to report that Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas has agreed to join the panel of judges set to speak at the upcoming April 20, 2011 Tort Talk Expo 2011 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania.
Judge Mazzoni, along with other judges to be confirmed, will provide tips to improve one's chances for success at pre-trial settlement conferences.
Below is the advertisement and registration form if you are interested in attending the event:
TORT TALK EXPO 2011
Seasons Ballroom
Mohegan Sun Casino
Wilkes-Barre, Pennsylvania
April 20, 2011
1 p.m. - 5 p.m.
[Registration 1 p.m. - 1:30 pm]
(2 SUBSTANTIVE CREDITS, 1 ETHICS CREDIT)
Followed by a Cocktail Reception at the
Breakers Nightclub
in the Mohegan Sun Casino
Seasons Ballroom
Mohegan Sun Casino
Wilkes-Barre, Pennsylvania
April 20, 2011
1 p.m. - 5 p.m.
[Registration 1 p.m. - 1:30 pm]
(2 SUBSTANTIVE CREDITS, 1 ETHICS CREDIT)
Followed by a Cocktail Reception at the
Breakers Nightclub
in the Mohegan Sun Casino
The TORT TALK EXPO 2011 is designed to be a CLE Program that will be as entertaining and informative as the posts regularly sent out from the Tort Talk blog.
The seminar will be immediately followed by a cocktail reception at which attendees can network with fellow lawyers, insurance professionals, and members of the federal and state judiciary from around Northeastern Pennsylvania.
The TORT TALK EXPO 2011 will include door prizes for every attendee and chances to win raffle prizes (gift cards, sporting event tickets, etc.). There will also be vendor tables for attendees to visit with a variety of service providers in the legal field.
Also, a portion of the proceeds from this event will be donated to the Janet Weis Children's Hospital in the Geisinger Health System in Danville, Pennsylvania.
The CLE Program will include the following topics and presenters:
THE TORT TALK TOP TEN (or so) CASES
Presenter: Daniel E. Cummins, Esquire
LITTLE LEAGUE TIPS FOR BIG LEAGUE LAWYERS
Presenter: Daniel E. Cummins, Esquire
(Will utilize baseball video clips to provide tips for the practice of law)
ANATOMY FOR LAWYERS: NECK AND BACK
(Also, witness a live simulation IME by an Orthopedic Surgeon)
Presenter: Dr. Lucian Bednarz, Physiatrist - Northeastern Rehabilitation Associates
Presenter: Dr. Thomas A. Allardyce, Orthopedic Surgeon
A VIEW FROM THE BENCH:
Ethical Issues in Legal Writing and Advocacy Before the Court
Moderator: Daniel E. Cummins, Esquire
Presenters: Judge Thomas Raup and Judge Thomas Wallitsch
of ADR Options -- Tips for Mediation/Arbitration
Presenters: Judge Robert A. Mazzoni and other members of judicial panel to be confirmed -- Tips for Settlement Conferences
Networking Cocktail Reception Follows at Breakers
5 p.m. - 6:30 p.m.
Costs to cover both CLE Seminar and Cocktail Reception:
Claims professionals/representatives and risk managers
$25.00
Lawyers who are Tort Talk Email Subscribers
$145.00
Lawyers who are not Tort Talk Email Subscribers
$165.00
Make checks payable to "Tort Talk."
For reservations, please complete the requested information below and return it to the address noted below or e-mail it to dancummins@comcast.net.
Name(s)____________________________________
Firm/Company_______________________________
MAIL REGISTRATION FORM AND PAYMENT TO:
TORT TALK
c/o Daniel E. Cummins, Esq.
Foley, Cognetti, Comerford, Cimini & Cummins
507 Linden Street
Suite 700
Scranton, PA 18503
For more information, contact Dan Cummins at 570-346-0745 or at dancummins@comcast.net.
HOPE TO SEE YOU THERE!
Networking Cocktail Reception Follows at Breakers
5 p.m. - 6:30 p.m.
Costs to cover both CLE Seminar and Cocktail Reception:
Claims professionals/representatives and risk managers
$25.00
Lawyers who are Tort Talk Email Subscribers
$145.00
Lawyers who are not Tort Talk Email Subscribers
$165.00
Make checks payable to "Tort Talk."
For reservations, please complete the requested information below and return it to the address noted below or e-mail it to dancummins@comcast.net.
Name(s)____________________________________
Firm/Company_______________________________
MAIL REGISTRATION FORM AND PAYMENT TO:
TORT TALK
c/o Daniel E. Cummins, Esq.
Foley, Cognetti, Comerford, Cimini & Cummins
507 Linden Street
Suite 700
Scranton, PA 18503
For more information, contact Dan Cummins at 570-346-0745 or at dancummins@comcast.net.
HOPE TO SEE YOU THERE!
Wednesday, November 10, 2010
Million Dollar Jury Verdict Entered in Lackawanna County Trial
Here's a link to a November 10, 2010 article in Scranton's Times-Tribune reporting on a million dollar jury verdict in a Lackawanna County Court of Common Pleas automobile accident personal injury case earlier this week:
http://thetimes-tribune.com/news/jury-awards-1-1-million-to-gouldsboro-woman-hurt-in-car-crash-1.1061920
http://thetimes-tribune.com/news/jury-awards-1-1-million-to-gouldsboro-woman-hurt-in-car-crash-1.1061920
Thursday, August 6, 2009
Latest Compilation of Post-Koken Cases
The following is a list of post-Koken cases that I have come across or have been made aware of over time. It is by no means intended to be an exhaustive list of these types of decisions to date and there may very well be other opinions out there.
All of the opinions and orders noted below have been generated from trial courts across the Commonwealth. I am unaware of any appellate decisions having been handed down yet in this area.
I would be interested in being notified of any other post-Koken cases you may be aware of so that they can be publicized and a consistent common law can be generated in this area.
If any one needs a copy of any of the opinions or orders listed below, please do not hesitate to contact me. I also invite anyone needing any other assistance with a post-Koken case pending in Northeastern Pennsylvania to please contact me to discuss the matter. I can be reached at dancummins@comcast.net.
The post-Koken cases that I am aware of to date are, as follows:
Decker v. Nationwide Ins. Co., 2005-Civil-1863//2006-Civil 2119 (Lacka. Co. March 4, 2008)(Minora, J.)(consolidation permitted of bad faith action against UIM carrier and declaratory judgment action regarding coverage).
Gunn v. Auto. Ins. Co. of Hartford, Conn., GD07-Civil-002888 (Alleg. Co. July 25, 2008)(Wettick, J.)(Bad faith claim and UIM claim allowed to proceed together).
Augustine v. Erie Ins. Exchange, 2006-Civil-416 (Lacka. Co. August 1, 2008)(Mazzoni, J.)(Motion to sever bad faith claim from UIM claim denied).
Collins v. Zeiler and State Farm, GD08-Civil-014817 (Alleg. Co. October 22, 2008)(Strassburger, J.)(Preliminary objection seeking to sever claims denied.).
Moyer v. Harrigan and Erie Ins. Exchange, 2008-Civil-1684 (Lacka. Co. October 24, 2008)(Thomson, J. visiting judge)(Consolidation of UIM claim and claim against tortfeasor permitted).
Jannone v. McCooey and State Farm, 2320-2008-Civil (Pike Co. April 1, 2009)(Chelak, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes).
Serulneck v. Kilian and Allstate, 2008-Civil-2859 (Lehigh Co. April 7, 2009)(McGinley, J.)(Motion of tortfeasor defendant for severance of claims against him from UIM claims under one caption denied.).
Six v. Phillips and Nationwide Ins. Co., 12227-Civil-2008 (Beaver Co. June 30, 2009)(Kwidis, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes.).
Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (Luz. Co. July 24, 2009)(Burke, J.)(Preliminary objection by tortfeasor defendant seeking to sever third party claim from consolidated UIM claim overruled).
All of the opinions and orders noted below have been generated from trial courts across the Commonwealth. I am unaware of any appellate decisions having been handed down yet in this area.
I would be interested in being notified of any other post-Koken cases you may be aware of so that they can be publicized and a consistent common law can be generated in this area.
If any one needs a copy of any of the opinions or orders listed below, please do not hesitate to contact me. I also invite anyone needing any other assistance with a post-Koken case pending in Northeastern Pennsylvania to please contact me to discuss the matter. I can be reached at dancummins@comcast.net.
The post-Koken cases that I am aware of to date are, as follows:
Decker v. Nationwide Ins. Co., 2005-Civil-1863//2006-Civil 2119 (Lacka. Co. March 4, 2008)(Minora, J.)(consolidation permitted of bad faith action against UIM carrier and declaratory judgment action regarding coverage).
Gunn v. Auto. Ins. Co. of Hartford, Conn., GD07-Civil-002888 (Alleg. Co. July 25, 2008)(Wettick, J.)(Bad faith claim and UIM claim allowed to proceed together).
Augustine v. Erie Ins. Exchange, 2006-Civil-416 (Lacka. Co. August 1, 2008)(Mazzoni, J.)(Motion to sever bad faith claim from UIM claim denied).
Collins v. Zeiler and State Farm, GD08-Civil-014817 (Alleg. Co. October 22, 2008)(Strassburger, J.)(Preliminary objection seeking to sever claims denied.).
Moyer v. Harrigan and Erie Ins. Exchange, 2008-Civil-1684 (Lacka. Co. October 24, 2008)(Thomson, J. visiting judge)(Consolidation of UIM claim and claim against tortfeasor permitted).
Jannone v. McCooey and State Farm, 2320-2008-Civil (Pike Co. April 1, 2009)(Chelak, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes).
Serulneck v. Kilian and Allstate, 2008-Civil-2859 (Lehigh Co. April 7, 2009)(McGinley, J.)(Motion of tortfeasor defendant for severance of claims against him from UIM claims under one caption denied.).
Six v. Phillips and Nationwide Ins. Co., 12227-Civil-2008 (Beaver Co. June 30, 2009)(Kwidis, J.)(Preliminary objection by tortfeasor to joinder of third party claim and UIM claim under one caption rejected; court also rules that evidence of insurance may come into evidence at trial for limited purposes.).
Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (Luz. Co. July 24, 2009)(Burke, J.)(Preliminary objection by tortfeasor defendant seeking to sever third party claim from consolidated UIM claim overruled).
Wednesday, May 6, 2009
Continuing Consolidation of Post-Koken Cases
It has now been about four years since the Pennsylvania Supreme Court handed down its decision in the case of Insurance Federation of Pennsylvania v. Commonwealth, Department of Insurance (Koken), 889 A.2d 550 (Pa. 2005), holding that automobile insurance carriers were not required to include arbitration clauses in their policies for the resolution of underinsured and uninsured motorists claims.
Some carriers that have altered the language of their arbitration clauses to require the consent of both parties to submit the case to arbitration include AMICA, GEICO, Allstate, Harleysville, and Progressive. Carriers that appear to have totally eliminated the arbitration clause altogether include Nationwide, Erie, Liberty Mutual, Donegal, Keystone, and USAA, requiring claims against those carriers to be resolved by way of a lawsuit. State Farm has changed its arbitration clause to specifically mandate that all underinsured and uninsured motorist claims be resolved by way of a lawsuit filed in the court of common pleas.
Now as these cases involving many different types of claims that can arise out of a single car accident (third party, UIM, UM, first party benefits claims, bad faith, etc.) begin to work their way through the court system in Pennsylvania, many novel issues are arising and causing great uncertainty for the courts and the bar.
At least one issue has been clarified. Based on numerous decisions by various courts of common pleas in different counties, it can be safely stated that the trial courts will favor, and allow to stand, the consolidation of UIM claims with any bad faith claims against the involved insurance company along with any claims against the individual defendants who actually caused the accident, all under one lawsuit.
A number of the cases addressing this issue of consolidation of claims have come out of the Lackawanna County and Allegheny County Courts Court of Common Pleas. In Lackawanna County, Judge Carmen Minora allowed for the consolidation of a Koken-type case under Rule 213 in Decker v. Nationwide Insurance Co., 83 Pa.D.&C.4th 375 (2007). Senior Judge Harold A. Thomson, Jr., then sitting in Lackawanna County, offered a similar opinion in the case of Moyer v. Harrigan and Erie Ins. Exchange, No. 1684-CV-2008 (2008). Judge Robert Mazzoni also allowed for a UIM claim to proceed in a consolidated fashion with a bad faith claim in Augustine v. Erie Ins. Exchange,2006-CV-416 (2008).
Similarly, in Allegheny County, consolidation of various first party and third party claims has been approved by Judge Eugene B. Strassburger in Collins v. Zieler and State Farm, No. G.D. 08-014817 (2008) and Judge R. Stanton Wettick in the case of Gunn v. Automobile Ins. Co. of Hartford, PICS No. 08-1266 (2008).
These cases were reviewed in detail in my prior columns that appeared in the Pennsylvania Law Weekly entitled “Here Comes Hurricane Koken,” 31 PLW 1165 (October 27, 2008), and the 2008 year-end review of auto cases in “Negligence is in the Air…and on the Road,” 31 PLW 1380 (December 22, 2008).
Generally speaking, a review of the above cases indicated that the trial courts of Pennsylvania would be allowing for the joinder of these separate claims under Pa.R.C.P. 2229(b) (“Permissive joinder”) or Pa.R.C.P. 213 (“Consolidation….”). The underlying rationale is that since these post-Koken claims arise out of the same “transaction or occurrence,” i.e. the same motor vehicle accident and involve similar factual and legal issues, they should be consolidated under one lawsuit. It also appeared from these cases that the overriding principle of judicial economy, i.e. how the already overburdened trial courts would need to handle the impending glut of these new types of claims, would be an additional driving force influencing the courts’ decisions in the post-Koken cases.
More recently, on April 1, 2009, Judge Gregory H. Chelak of the Pike County Court of Common Pleas, issued a three page Order that reads like an opinion in the case of Jannone v. McCooey and State Farm, 2320-2008-Civil in which he joined the growing number of decisions allowing for the consolidation of the multiple claims available in a post-Koken automobile accident case.
In Jannone, the Plaintiff was involved in a motor vehicle accident in a school parking lot on February 15, 2008. At the time, the Plaintiff was covered by a post-Koken automobile insurance policy issued by State Farm. As noted above, that carrier had done away with the UIM arbitration clause and instead required the filing of a lawsuit for the pursuit of a UIM claim.
As such, the Plaintiff filed suit against the third party tortfeasor and State Farm as the UIM carrier under as single caption in the Pike County Court of Common Pleas. The third party tortfeasor, not wanting to be lumped in the same case with an insurance company in front of a jury, filed preliminary objections.
Judge Chelak quickly dismissed the defendant tortfeasor’s first assertion that the claims asserted against her should be dismissed in that they were “misjoined” with those claims asserted against the UIM carrier. Noting that there did “not appear to be any controlling appellate case law specifically addressing whether claims against a tortfeasor and UIM insurer may be joined in the same cause of action pursuant to Rule 2229(b),” Judge Chelak stated that the joinder of the claims would be allowed to stand under that Rule as the court was satisfied that the causes of actions against the defendant tortfeasor and State Farm arose out of the same occurrence of a single motor vehicle accident and involved similar factual questions. In denying this preliminary objection,, the Jannone court also alluded to the overriding principle of judicial economy and noted that the joinder of these claims would save judicial resources and avoid delays and expenses to the litigants.
Judge Chelak also rejected the alternative argument of the defendant tortfeasor that the claims against her should be dismissed because trying them along with the Plaintiff’s claims against State Farm would be unduly prejudicial as it would require the introduction into evidence of her own insurance policy.
In support of her argument, the defendant tortfeasor cited to Pennsylvania Rule of Evidence 411 which provides that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.”
Judge Chelak used Pa.R.E. 411 to instead support his decision to deny this preliminary objection. Judge Chelak found that, under the scenario presented in this Koken case, the defendant tortfeasor’s insurance policy would be relevant for the separate purpose of showing of State Farm’s liability, since State Farm’s UIM liability was dependent upon the amount of the defendant tortfeasor’s liability coverage. Note that it is settled law under Pennsylvania law, the UIM carrier is entitled to a credit in the amount of the tortfeasor’s liability policy before the UIM carrier has to pay out under its own policy.
According to Judge Chelak, it therefore followed that the defendant tortfeasor’s policy was “not inadmissible pursuant to Pa.R.E. 411” and, as such, he denied the defendant tortfeasor’s preliminary objection that it was unduly prejudicial to allow for this joinder of claims.
With this new area of law developing it is important that the courts and the bar attempt to publicize post-Koken decisions whenever possible. Surely, there have been other similar orders and opinions addressing important post-Koken issues handed down by other courts of common pleas across Pennsylvania that have gone unpublished or have not been otherwise publicized for the benefit of the bar. Perhaps the courts and counsel can bring these cases to the attention of others by submitting copies of the opinions to statewide organizations such as the Pennsylvania Bar Association (PBA), the Pennsylvania Association for the Advancement of Justice (PAAJ), and the Pennsylvania Defense Institute (PDI). In this way, the common law associated with post-Koken cases can be developed in a more uniform and consistent fashion under the doctrine of stare decisis.
Some carriers that have altered the language of their arbitration clauses to require the consent of both parties to submit the case to arbitration include AMICA, GEICO, Allstate, Harleysville, and Progressive. Carriers that appear to have totally eliminated the arbitration clause altogether include Nationwide, Erie, Liberty Mutual, Donegal, Keystone, and USAA, requiring claims against those carriers to be resolved by way of a lawsuit. State Farm has changed its arbitration clause to specifically mandate that all underinsured and uninsured motorist claims be resolved by way of a lawsuit filed in the court of common pleas.
Now as these cases involving many different types of claims that can arise out of a single car accident (third party, UIM, UM, first party benefits claims, bad faith, etc.) begin to work their way through the court system in Pennsylvania, many novel issues are arising and causing great uncertainty for the courts and the bar.
At least one issue has been clarified. Based on numerous decisions by various courts of common pleas in different counties, it can be safely stated that the trial courts will favor, and allow to stand, the consolidation of UIM claims with any bad faith claims against the involved insurance company along with any claims against the individual defendants who actually caused the accident, all under one lawsuit.
A number of the cases addressing this issue of consolidation of claims have come out of the Lackawanna County and Allegheny County Courts Court of Common Pleas. In Lackawanna County, Judge Carmen Minora allowed for the consolidation of a Koken-type case under Rule 213 in Decker v. Nationwide Insurance Co., 83 Pa.D.&C.4th 375 (2007). Senior Judge Harold A. Thomson, Jr., then sitting in Lackawanna County, offered a similar opinion in the case of Moyer v. Harrigan and Erie Ins. Exchange, No. 1684-CV-2008 (2008). Judge Robert Mazzoni also allowed for a UIM claim to proceed in a consolidated fashion with a bad faith claim in Augustine v. Erie Ins. Exchange,2006-CV-416 (2008).
Similarly, in Allegheny County, consolidation of various first party and third party claims has been approved by Judge Eugene B. Strassburger in Collins v. Zieler and State Farm, No. G.D. 08-014817 (2008) and Judge R. Stanton Wettick in the case of Gunn v. Automobile Ins. Co. of Hartford, PICS No. 08-1266 (2008).
These cases were reviewed in detail in my prior columns that appeared in the Pennsylvania Law Weekly entitled “Here Comes Hurricane Koken,” 31 PLW 1165 (October 27, 2008), and the 2008 year-end review of auto cases in “Negligence is in the Air…and on the Road,” 31 PLW 1380 (December 22, 2008).
Generally speaking, a review of the above cases indicated that the trial courts of Pennsylvania would be allowing for the joinder of these separate claims under Pa.R.C.P. 2229(b) (“Permissive joinder”) or Pa.R.C.P. 213 (“Consolidation….”). The underlying rationale is that since these post-Koken claims arise out of the same “transaction or occurrence,” i.e. the same motor vehicle accident and involve similar factual and legal issues, they should be consolidated under one lawsuit. It also appeared from these cases that the overriding principle of judicial economy, i.e. how the already overburdened trial courts would need to handle the impending glut of these new types of claims, would be an additional driving force influencing the courts’ decisions in the post-Koken cases.
More recently, on April 1, 2009, Judge Gregory H. Chelak of the Pike County Court of Common Pleas, issued a three page Order that reads like an opinion in the case of Jannone v. McCooey and State Farm, 2320-2008-Civil in which he joined the growing number of decisions allowing for the consolidation of the multiple claims available in a post-Koken automobile accident case.
In Jannone, the Plaintiff was involved in a motor vehicle accident in a school parking lot on February 15, 2008. At the time, the Plaintiff was covered by a post-Koken automobile insurance policy issued by State Farm. As noted above, that carrier had done away with the UIM arbitration clause and instead required the filing of a lawsuit for the pursuit of a UIM claim.
As such, the Plaintiff filed suit against the third party tortfeasor and State Farm as the UIM carrier under as single caption in the Pike County Court of Common Pleas. The third party tortfeasor, not wanting to be lumped in the same case with an insurance company in front of a jury, filed preliminary objections.
Judge Chelak quickly dismissed the defendant tortfeasor’s first assertion that the claims asserted against her should be dismissed in that they were “misjoined” with those claims asserted against the UIM carrier. Noting that there did “not appear to be any controlling appellate case law specifically addressing whether claims against a tortfeasor and UIM insurer may be joined in the same cause of action pursuant to Rule 2229(b),” Judge Chelak stated that the joinder of the claims would be allowed to stand under that Rule as the court was satisfied that the causes of actions against the defendant tortfeasor and State Farm arose out of the same occurrence of a single motor vehicle accident and involved similar factual questions. In denying this preliminary objection,, the Jannone court also alluded to the overriding principle of judicial economy and noted that the joinder of these claims would save judicial resources and avoid delays and expenses to the litigants.
Judge Chelak also rejected the alternative argument of the defendant tortfeasor that the claims against her should be dismissed because trying them along with the Plaintiff’s claims against State Farm would be unduly prejudicial as it would require the introduction into evidence of her own insurance policy.
In support of her argument, the defendant tortfeasor cited to Pennsylvania Rule of Evidence 411 which provides that “[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.”
Judge Chelak used Pa.R.E. 411 to instead support his decision to deny this preliminary objection. Judge Chelak found that, under the scenario presented in this Koken case, the defendant tortfeasor’s insurance policy would be relevant for the separate purpose of showing of State Farm’s liability, since State Farm’s UIM liability was dependent upon the amount of the defendant tortfeasor’s liability coverage. Note that it is settled law under Pennsylvania law, the UIM carrier is entitled to a credit in the amount of the tortfeasor’s liability policy before the UIM carrier has to pay out under its own policy.
According to Judge Chelak, it therefore followed that the defendant tortfeasor’s policy was “not inadmissible pursuant to Pa.R.E. 411” and, as such, he denied the defendant tortfeasor’s preliminary objection that it was unduly prejudicial to allow for this joinder of claims.
With this new area of law developing it is important that the courts and the bar attempt to publicize post-Koken decisions whenever possible. Surely, there have been other similar orders and opinions addressing important post-Koken issues handed down by other courts of common pleas across Pennsylvania that have gone unpublished or have not been otherwise publicized for the benefit of the bar. Perhaps the courts and counsel can bring these cases to the attention of others by submitting copies of the opinions to statewide organizations such as the Pennsylvania Bar Association (PBA), the Pennsylvania Association for the Advancement of Justice (PAAJ), and the Pennsylvania Defense Institute (PDI). In this way, the common law associated with post-Koken cases can be developed in a more uniform and consistent fashion under the doctrine of stare decisis.
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