Corrected Link for case of M.M. a Minor v. The County of Carbon Highlighted on Tort Talk Yesterday

 Yesterday's Tort Talk post covered the case of M.M., a Minor v. The County of Carbon, No. 18-CV-2341 (C.P. Carbon Co. Dec. 29, 2021 Nanovic, J.).

Below is the corrrect Link for the decision.  I apologize for any confusion that may have been caused by the faulty Link.

In this decision, Judge Roger N. Nanovic addressed the issue of whether a minor Plaintiff was liable to pay a Department of Human Services/Medicaid lien arising out of a motor vehicle accident case in a matter where the Defendant had obtained a favorable ruling prior to trial on a Motion In Limine to exclude evidence at trial of all medical bills because it appeared that those medical bills were covered by a policy of insurance.

In the Opinion, Judge Nanovic found that the Medicaid payments were not paid under any policy of insurance and that, therefore, the lien must be paid back out of the Plaintiff’s settlement proceeds.

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

Court Rules on Court Approval of Settlement that Minor Plaintiff Must Satisfy Medicaid Lien

In the case of M.M., a Minor v. The County of Carbon, No. 18-CV-2341 (C.P. Carbon Co. Dec. 29, 2021 Nanovic, J.), Judge Roger N. Nanovic addressed the issue of whether a minor Plaintiff was liable to pay a Department of Human Services/Medicaid lien arising out of a motor vehicle accident case in a matter where the Defendant had obtained a favorable ruling prior to trial on a Motion In Limine to exclude evidence at trial of all medical bills because it appeared that those medical bills were covered by a policy of insurance.

According to the Opinion, the case ultimately settled and the Plaintiffs then pursued court approval of the settlement.

In that Petition for Court Approval of the Settlement, the Plaintiff asserted that, given the Motion In Limine result, which confirmed that the Plaintiff allegedly could not introduce the Medicaid payments at trial and recover on the same, the Plaintiff was not liable to pay the Medicaid lien following the court’s approval of the settlement.  The Plaintiff argued that, as such, the Medicaid lien did not have to be considered in terms of the settlement of the case.

In the Opinion, Judge Nanovic disagreed with the Plaintiff’s position and found that the Medicaid payments were not paid under any policy of insurance and that, therefore, the lien must be paid back out of the Plaintiff’s settlement proceeds.

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


I send thanks to Attorney Gerard J. Geiger of the Stroudsburg, PA law firm of Neuman Williams, P.C. for bringing this case to my attention.

Source of image:  Photo by Fabian Blank on www.unsplash.com.

First Time Skier Gets a Pass

In the case of Aldosari v. Tuthill Corp., No. 17-0626 (C.P. Carbon Co. Dec. 13, 2019 Nanovic, J.), the court denied a Defendant’s Motion for Summary Judgment in a skiing accident case.

According to the Opinion, the Plaintiff, who was a resident of Saudi Arabia was a 17 year old individual who had never skied before the subject incident.  The Plaintiff testified at her deposition that she was unfamiliar with the necessary skills or inherent risks of skiing.

After disembarking from the chair lift on her first trip up to the top of the slope, the Plaintiff developed cold feet and was too scared to ski downhill. The Plaintiff asked a lift attendant if there was another way for her to reach the bottom of the hill without skiing. The Plaintiff was told that there was no other way down.

The Plaintiff alleged that she was therefore forced to assume the risk of skiing downhill on her own as the only means of returning to the bottom.

When the Plaintiff began to ski down, she turned to avoid another skier, lost control, and skidded or rolled into a wooded area beyond the edge of the trial and sustained injuries as a result.

In her lawsuit, the Plaintiff asserted that, by failing to provide an alternate means for her to come down the mountain under the circumstances presented, the resort was negligent and breached a duty of care that it owed to her as a business invitee.

The Defendant resort filed a Motion for Summary Judgment and asserted that the Plaintiff’s claims were barred under the Skier’s Responsibility Act, 42 Pa. C.S.A. §7102(c), given that the Plaintiff’s injuries were a direct result of one or more of the inherent risks of skiing for which she assumed the risk of injury.

In his Opinion, Judge Nanovic wrote that, as a matter of law, a person who participates in the sport of downhill skiing is charged with knowing and accepting the danger of injury from risks inherent and necessary to the sport, even if the skier is in fact ignorant of these risks and does not consent to assume those risks.

Yet, although the Plaintiff  in this matter was engaged in the recreational sport of downhill skiing at the time of her injury, the court found that the risk that a first time skier would vacillate and change her mind was beyond the scope of the Skier’s Responsibility Act.

The court noted that the circumstances presented in this case did not alter the otherwise applicable common law standards of reasonable care in determining whether the ski resort owed a duty to the Plaintiff after she reached the top of the mountain and told one of the resort’s employees that she was too scared to ski downhill and needed help getting back down.

The court also noted that, under the case presented, an issue of fact was raised for the jury to consider as to whether the Plaintiff had voluntarily engaged in the sport of downhill skiing at the time of her injury. To the contrary, it appeared to the court that the Plaintiff was compelled to attempt to ski down and, therefore, may not have voluntarily assumed the risk in the same sense of one who, freely by choice, purposefully elects to ski down the side of a snow covered mountain.

Given these issues raised, the court denied the request for summary judgment.

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

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Feb. 18, 2020).

Keeping Settling Defendants on the Verdict Slip

In his recent decision in the case of Stang v. Smith, PICS Case No. 14-1199 (C.P. Carbon Co. July 28, 2014 Nanovic, P.J.), Judge Roger Nanovic of the Carbon County Court of Common Pleas addressed the issue of whether settling Defendants under a joint tortfeasor release could be required to be on the verdict slip at a medical malpractice trial.  

In this medical malpractice case, several of the Defendants had settled out prior to trial utilizing a pro rata joint tortfeasor release in accordance Uniform Contribution Among Tort-Feasor’s Act.   At trial, all of the Defendants were identified.  The jury entered a defense verdict and the Plaintiff moved for a new trial asserting that the court erred in denying her Motion to Discontinue her suit against the settling Defendants.  The Plaintiff also argued that the court erred by placing the names of the settling Defendants on the jury verdict slip in order for the jury to determine the comparative liability of the settling doctors as well as the non-settling Defendants.  

Judge Nanovic ruled that, under Pennsylvania law, the non-settling Defendants were entitled to have the settling Defendants remain as parties in order to establish their status as joint tortfeasor and, if found to be joint tortfeasor, to have the jury apportion liability amongst them so that the amount of damages be non-settling Defendants might be liability to pay could be determined.  

While Judge Nanovic noted that, although the non-settling Defendants had a right to inquire a settling Defendant to remain as a party, there was no absolute right to have a settling Defendant noted on the verdict slip.  Rather, in order to ensure that a settling Defendant would be included on the verdict slip, evidence had to be presented to establish a prima facie case of negligence against that settling Defendant.  

Applying the law to the case before him, Judge Nanovic found that evidence was presented which compelled the victim of all Defendants, settling and non-settling, upon the verdict slip.  

 

I do not have a copy of this decision.  Anyone wishing to secure a copy of the staying decision by Judge Nanovic may call the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly at 1-800-276-7427 and provide the above-noted PICS Case No. and pay a small fee.