Superior Court Rules That Seat Belt Evidence Can't Be Considered Where Plaintiff Took Seat Belt Off Just Before Accident

In a non-precedential decision in the case of Lucykanish v. Flurer, No. 541 EDA 2024 (Pa. Super. Aug. 30, 2024 Murray, J., Lane, J. and Stabile, J.)(Op. by Murray, J.)(Stabile, J., concurring, the Superior Court noted that it felt compelled to reverse the entry of summary judgment in a motor vehicle accident case in which the Plaintiff alleged negligence on the part of the driver for stopping quickly at a point in time after the Plaintiff had removed a seat belt to retrieve a cell phone from the floor of the vehicle.

The court ruled that Pennsylvania’s seat belt law 75 Pa. C.S.A. §4581(e) generally prohibits evidence of seat belt non-use as being used to show contributory negligence on the part of an injured party.

After reviewing the trial court's decision in which summary judgment was granted on the basis, in part, that no negligence on the part of the defendant-driver was shown to be the cause of the Plaintiff's alleged injuries where the Plaintiff had taken their seat belt off before the Defendant driver had stopped short due to a situation on the roadway ahead, the Superior Court noted that the trial court's reliance on the fact that the Plaintiff was not seat belted was an improper consideration.  The Court noted that reference to that evidence should have been excluded from the analysis.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.

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

Source of image:  Photo by Ryo Kawasaki on www.unsplash.com.

Summary Judgment Granted in MVA Case Where Plaintiff Had Seat Belt Off and Defendant Driver Stopped Short

In the case of Lucykanish v. Flurer, No. 2545-CV-2022 (C.P. Monroe Co. Feb. 1, 2024 Williamson, J.), Judge David J. Williamson granted summary judgment to a Defendant driver in a motor vehicle accident case in which the Plaintiff was a passenger in that Defendant’s vehicle.

According to the Opinion, the Plaintiff was a rear seat passenger in the Defendant’s truck when another passenger dropped her cell phone in the rear footwell. The Plaintiff removed her seat belt to crawl around in the footwell to look for the phone.

At the same time, another vehicle improperly passed the Defendant’s truck on the right and then cut back into the Defendant’s lane.  In order to avoid a collision, the Defendant forcefully applied the truck’s brakes, which allegedly resulted in the Plaintiff striking her head on the truck’s center console.

After discovery, the Defendant filed a Motion for Summary Judgment arguing that the Plaintiff could not demonstrate that he acted negligently in operating his vehicle and that there was no proximate causation established by the Plaintiff with respect to the Defendant’s actions and the Plaintiff’s alleged injuries.

Judge Williamson granted the Motion for Summary Judgment and held that the Plaintiff failed to demonstrate that the Defendant acted negligently or that any alleged negligence on the part of the Defendant was a proximate cause of the Plaintiff’s injuries.

The court noted that the evidence developed during discovery confirmed that the Defendant braked his truck forcefully in order to avoid a collision with another vehicle that had improperly tried to pass the Defendant on the right and then attempted to cut back into the Defendant’s lane of travel. The court noted that Defendant driver’s actions were meant to protect the entire vehicle from a potentially serious motor vehicle accident. The court found that the Plaintiff’s alleged injury, that occurred while the Plaintiff was crawling around the floor in the back seat area, unrestrained, did not impute negligence to the Defendant when the urgent need unexpectedly arose to hit the brakes in a forceful fashion.

The Plaintiff otherwise attempted to argue that the Defendant was negligence per se by speeding in a construction zone. The court noted that this argument failed because, even if the Defendant had violated the Motor Vehicle Code as alleged by the Plaintiff, the Plaintiff had still failed to show that the Defendant’s alleged speeding was a proximate cause of the injury.

The crux of the Plaintiff’s claim was that the Defendant had braked too hard or too late. The court stated, however, that the force that one applies the brakes of a vehicle is not grounds for a finding of a negligence under circumstances of this case.

Rather, Judge Williamson noted that, here, the Plaintiff would have not been injured if she had simply stayed in her seat with her seat belt on. The court noted that the Plaintiff failed to explain why she had to crawl around the footwell of a moving vehicle, let alone one that she would later claim was driving allegedly dangerously fast.

Overall, the court emphasized that the Defendant had acted appropriately under the circumstances in order to avoid an accident. Accordingly, the court agreed with the Defendant that the Plaintiff had failed to prove negligence or that any alleged negligence on the part of the Defendant was the alleged proximate cause of the Plaintiff’s injuries.

As noted, summary judgment was granted and the case was dismissed.

Anyone wishing to review this decision may click this LINK.

Source: “The Legal Intelligencer Common Pleas Case Alert,” at Law.com (April 4, 2024).

Federal Middle District Judge Conaboy Tackles Pre-Trial Motions in Bad Faith UIM Matter

In his recent post-Koken decision addressing numerous Motions In Limine filed by both parties in a UIM/Bad Faith case in the matter of Clemens v. New York Central Mutual Fire Insurance Company, No. 3:13-cv-2447 (M.D. Pa. June 15, 2015 Conaboy, J.), Judge Richard P. Conaboy of the Federal Middle District Court of Pennsylvania issued a number of decisions of note which are set forth below.

In the dispute over whether Pennsylvania law or New York law should apply in a case where the Defendant is a New York company, the insured was a New York resident, the insurance contract was delivered in New York, but where the accident occurred in Pennsylvania and the injured party resided in Pennsylvania at the time of the accident, the Court ruled that, due to the significant state interest to protect its resident insureds, Pennsylvania’s interest in the outcome of this lawsuit was superior to that of New York such that Pennsylvania law would be applied.  

On a separate issue, Judge Conaboy ruled that, since the New York insurance company Defendant was not licensed to do business in the Commonwealth of Pennsylvania and did not write insurance contracts in Pennsylvania, the Defendant’s Motion to preclude references to Pennsylvania insurance regulations and the Unfair Insurance Practices Act was granted.

In this bad faith action, the Court denied the Defendant’s Motion to Preclude Plaintiffs from introducing evidence of insurance reserves during trial.  The Court accepted the Plaintiff’s argument that the amount set aside in reserves by the carrier necessarily reflected the company’s assessment of the potential worth of the claim and, to the extent the reserves were different from the amount offered in settlement, such information was germane to an analysis of whether or not the company acted in bad faith in pre-trial settlement negotiations.   Judge Conaboy did also noted that the Defendant would be able to produce testimony explaining the difference between its reserve and its settlement offer in this case if the Defendant deemed that necessary.  

In another ruling, the Court granted the Defendant’s Motion In Limine regarding the relevant timeframe to be considered by the jury with respect to any bad faith allegations.  In this regard, the Court agreed with the defense position that bad faith may not be predicated on an insurance company’s actions or lack of actions before being notified of a claim.   The Court noted that the Plaintiff’s attorney’s previous reference to a “potential… claim” was insufficient to trigger any duty on the part of the Defendant carrier to act as of the time of that statement in a letter from Plaintiff's attorney.

However, the Court noted that the law did allow for the introduction of evidence of an insured’s alleged bad faith during the pendency of the underlying lawsuit involving the injury claim.   As such, Judge Conaboy allowed evidence of alleged bad faith conduct to include the time period that the underlying personal injury claim was pending and up to the time that underlying case was settled.  

The Court granted the Defendant’s Motion seeking to preclude the Plaintiff from introducing evidence regarding the existence or the amount of any settlement offers the Defendant made during the course of the underlying matter.  

The Court also granted the Defendant insurance company’s Motion to preclude the Plaintiff from introducing into evidence claims by other nonparties against the same insurance company in other unrelated matters.  

Judge Richard P. Conaboy
Federal Middle District of PA

Judge Conaboy denied the Defendant’s Motion to preclude the Plaintiff’s expert from testifying at trial.  The court rejected the defense argument that the bad faith claim was not complex and that jurors did not require the benefit of any specialized knowledge in order to evaluate the bad faith claim presented.   Judge Conaboy denied this defense motion, noting his belief that an expert’s testimony could be helpful to the jury in their determination of whether or not the Defendant insurance company acted in bad faith towards the Plaintiff.   Accordingly, the Plaintiff’s expert was allowed to testify regarding industries standings and claims handling practices.  

The Court did granted the Defendant’s separate motion to preclude Plaintiffs’ attorneys from testifying during the course of the trial.  In ruling in this regard, the Court noted that, typically, a law firm that did not participate in the underlying matter, which gave rise to the alleged bad faith claim was also employed by the Plaintiff’s attorney from the underlying matter to prosecute the bad faith claims.   The Court noted that this practice avoids the confusion inherent and simultaneously having a Plaintiff’s attorney act as both a witness and an advocate.   Judge Conaboy noted the courts' “strong disinclination to permit Plaintiffs’ attorneys to render testimony in this matter and its expectation that counsel for both parties will be able to stipulate to the authenticity of Plaintiffs’ proposed documentary evidence.”

The Court granted Plaintiff’s Motion In Limine to preclude the Defendant from introducing evidence regarding the use of seat belts, i.e., that the injured party Plaintiff was not wearing a seat belt at the time of the accident.  Judge Conaboy noted that, under 75 Pa. C.S.A. §4581, and Pennsylvania law, a violation of the seat belt statute in Pennsylvania may not be used as evidence in the trial of a civil action.  

Judge Conaboy also noted that, should the Plaintiff move forward on an allegation of excess delay on the part of the Defendants as constituting bad faith, the Defendants would be allowed to introduce evidence regarding the amounts the Plaintiff demanded in settlement during negotiations.   In so ruling, the Court referred to F.R.E. 408(b) which permits the introduction of evidence regarding settlement discussions to “negate a contention of undue delay.”   The Court held a ruling on the Plaintiff’s motion in this regard in abeyance pending the presentation of evidence on these issues at trial. 

The Court also denied the Plaintiff ‘s Motion to preclude testimony or other evidence at trial pertaining to the Plaintiff’s conduct or the Plaintiff’s conduct of Plaintiff’s counsel.  The defense argued in this regard that any alleged actions by the Plaintiff or Plaintiff’s counsel that allegedly unreasonably delayed the evaluation of a UIM claim are relevant to the question of whether an insurance company acted in bad faith in resolving such a claim.   As such, the Court denied the Plaintiff’s Motion in this regard.  

The Court also granted, in part, the Defendant’s Motion In Limine to preclude the Plaintiff’s from introducing any evidence concerning any federal court mediation that was completed in the matter.  The Court limited its decision to the conduct of the parties in the presence of the mediator only.   As such, any negotiations that preceded or post-dated the mediation session were found to be relevant to the question of whether or not the Defendant alleged unreasonably delayed the negotiation of the UIM claim and thereby allegedly bargaining bad faith with its insured such that this type of information was deemed to be potentially admissible at trial.  

 

I send thanks to Attorney Michael Pisanchyn of the Pisanchyn Law Firm in Scranton, PA for bringing this decision to my attention.

 

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

 

 

Compelling Commercial In Favor of Seatbelt Use

It should be well known from my prior blog posts and articles that I am a proponent of the argument that the ban against seat belt defense in civil litigation matters should be repealed under Pennsylvania law as a possible means of getting the last small percentage of non-compliant drivers and passengers to obey the law and protect themselves from greater injury or death.

I came across this ad on seatbelt use from the U.K. that was forwarded to me by an old college roommate of mine at Villanova who is a fomer cop himself who used to write out tickets to people for failing to use a seatbelt.

Hopefully this ad, which is getting good play on YouTube, also makes its way to the U.S. airwaves as it is pretty compelling and may cause people to think twice about going without buckling up:

http://embracethis.co.uk/

Year-End Review Article on Important Updates and Trends in Auto Law

(This second part of a two-part article appeared in the January 4, 2010 edition of the Pennsylvania Law Weekly. The first part of the article reviewed the important cases and trends in the general civil litigation context. That first part of the article can be viewed here by going down the right-hand column of this blog to the Latest Documents box powered by JDSupra.com, where all of my articles are listed, and clicking on the article entitled "A Wild Ride.")

(Also, for more recent updates on post-Koken cases, please click on the Label for "Koken.")


In The Driver's Seat

Post-Koken decision making dominated the field of auto insurance law in 2009


By Daniel E. Cummins
Special to the Law Weekly
DanCummins@comcast.net

Editor's note: Last of two parts.

If 2009 is any indicator, it will remain a challenging task to stay on top of automobile litigation law and, at times, difficult to predict how the courts will rule on the myriad of issues continually arising in the novel area of post-Koken cases.

For the uninitiated, the state Supreme Court's landmark decision in Insurance Federation of Pennsylvania v. Koken, 801 A.2d at 624 (Pa. 2005), changed the realm of auto insurance litigation by ending the requirement that claims over uninsured/underinsured motorist coverage be resolved through arbitration.

Consolidation

In 2009, post-Koken automobile accident cases continued to move slowly through the system as both plaintiff's counsel and defense counsel cautiously maneuvered through the uncharted waters presented by these novel cases.

One early issue that appeared to be solidified last year by decisions out of Allegheny County and Lackawanna County was that UM/UIM claims can proceed in a consolidated fashion under one lawsuit with the claim against the third-party tortfeasor under Pa.R.C.P. 213, given that both claims arise out of the same occurrence.

The established trend of trial courts allowing for the consolidation of third-party claims and UIM claims largely continued in 2009 with a number of additional trial court decisions.

In Pike County, Judge Gregory H. Chelak issued an opinion in Jannone v. McCooey and State Farm, 2009 WL 2418862 (C.P. Pike April 1, 2009), denying the tortfeasor's preliminary objection to the joinder of a third-party claim and a UIM claim under one caption. Chelak also ruled, in dicta, that evidence of insurance could potentially come into evidence during the later trial of that matter for limited purposes.

In Serulneck v. Kilian and Allstate, 2008-Civil-285 (C.P. Lehigh April 7, 2009), Judge Carol K. McGinley denied the tortfeasor defendant's motion to sever the claims against him from the UIM claims that were filed by the plaintiff under one caption.

Judge C. Gus Kwidis of the Beaver County Court of Common Pleas followed suit in Six v. Phillips and Nationwide Ins. Co., 2009 WL 2418861 (C.P. Beaver June 30, 2009), with his decision denying the preliminary objection by the tortfeasor to the joinder of a third-party claim and a UIM claim in one lawsuit. Similar to Chelak's ruling in Jannone, Kwidis also stated, in dicta, that evidence of insurance may come into evidence at trial for limited purposes.

Judge Thomas Burke of the Luzerne County Court of Common Pleas ruled in Glushefski v. Sadowski and Erie Ins. Exchange, 1189-Civil-2009 (C.P. Luzerne July 24, 2009), that the preliminary objection filed by a tortfeasor defendant seeking to sever a third party claim from a consolidated UIM claim should be overruled.

In the case of Gingrich v. Esurance and Graci, No. 08795 CV 2009 (C.P. Dauphin Nov. 2, 2009), the third party tortfeasor filed preliminary objections to a complaint that joined the third party and the UIM causes of action under one caption. Dauphin County Judge Todd Hoover issued a one-line order denying the preliminary objections on Nov. 2, thereby allowing the claims to proceed in a consolidated fashion.

It appears that an overriding factor in essentially all of the above decisions was that the consolidation of these claims would further the interests of judicial economy by promoting streamlined, as opposed to piecemeal, litigation.

However, more recently, in an opinion and order issued in Baptiste v. Strobel and State Farm, A.D. 09-11444 (C.P. Butler Nov. 5, 2009), Judge Marilyn J. Horan revealed there is room for disagreement on the consolidation issue.

Horan rejected the judicial economy argument as being outweighed by the undue prejudice to the tortfeasor given the possible introduction of UIM insurance issues in these combined cases. Horan therefore granted the misjoinder of causes of action preliminary objection filed by State Farm, the UIM carrier. Horan not only ruled that the UIM claim was to be severed from the third party claim, but also ruled that the UIM claim should be stayed pending the resolution of the underlying negligence claim.

To date, there have not been any appellate court opinions on this consolidation issue. It is unlikely that any such appellate decisions will be forthcoming in the near future as these issues are not readily appealable at such early stages of the litigation. As such, Pennsylvania litigators will have to continue to rely upon the various trial court opinions, and the reasoning contained therein, to advocate their positions.

Forum Selection

The Superior Court issued an opinion upholding Liberty Mutual Insurance Group's forum selection clause in the post-Koken case of O'Hara v. The First Liberty Ins. Corp., PICS Case No. 09-1884 (Pa. Super. Nov. 9, 2009) Kelly, J. (9 pages).

In this case, Delaware County plaintiffs were injured in a Delaware County accident but filed suit in Philadelphia County for breach of contract and loss of consortium after Liberty denied their UIM claim.

Liberty Mutual's policy had a forum selection clause mandating that, if suit were filed by the insured, the suit "must be brought in a court of competent jurisdiction in the county and state of your legal domicile at the time of the accident." Accordingly, Liberty Mutual filed preliminary objections asserting improper venue.

The trial court sustained the preliminary objections and transferred the case to Delaware County. Affirming this decision on appeal, the Superior Court found the clause to be clear and unambiguous and summarily rejected the plaintiffs' public policy arguments.

Offsetting Benefits

The Pennsylvania Superior Court handed down a monumental UIM decision in the case of Pusl v. Means, 2009 WL 3065089 (Pa. Super. Sept. 23, 2009).

In the opinion written by Judge Zoran A. Popovich, the Superior Court held that where a plaintiff first obtains a UIM recovery prior to the conclusion of her suit against the third-party defendant tortfeasor, the third-party defendant is entitled to have any verdict entered against him reduced by a credit or set-off in the amount of the UIM benefits previously secured by the plaintiff.

More specifically, the plaintiff in Pusl had recovered $75,000 in UIM policy limits under his own automobile insurance policy from State Farm in a settlement prior to the completion of the trial against the tortfeasor defendant.

At the later trial against the defendant tortfeasor, the jury entered a verdict in favor of the plaintiff in the amount of $100,000. In post-trial motions, the defense requested a molding of the verdict to $25,000 after the application of a credit or set-off of the $75,000 in UIM benefits previously received by the plaintiff. The trial court granted the defendant's request and, on appeal, the Superior Court affirmed.

In so ruling, the Superior Court weighed two conflicting public policies: the recognized public policy against double recoveries by plaintiffs; and the policy that a tortfeasor should be liable for the all of damages caused as a result of his negligence.

The court in Pusl noted that the first public policy, against double recoveries, was essentially codified in 75 Pa.C.S.A. Section 1722, "Preclusion of recovering required benefits." The court noted that Section 1722 "was obviously designed" to refer to first party benefits under the Motor Vehicle Financial Responsibility Law and to prevent a double recovery of those benefits.

The plaintiff's UIM benefits were found to "fall within Section 1722's first-party benefits because the UIM benefit was paid to her from her personal insurance policy with State Farm."

Therefore, according to the Pusl court, the plaintiff's receipt of both the full jury award from the defendants and the pre-trial UIM settlement with State Farm would constitute a "double recovery" that the MVFRL was specifically designed to prevent.

The court disagreed with the plaintiff's argument, in part, that the reduction of the verdict amount violated the second noted public policy requiring a tortfeasor defendant to pay for all of the damages he or she caused. The court reasoned that the tortfeasor's liability was not lessened or reduced by the offset at all, because State Farm, as the carrier that paid out the UIM benefits, still had the right to pursue a subrogation claim against the defendant and thereby require that defendant to pay back the $75,000 in UIM benefits. Thus, according to this opinion, the second public policy was not violated by the molding of the verdict.

Prior to the Pusl opinion, the issue of molding a plaintiff's jury award to reflect the pre-trial receipt of UIM benefits had only been addressed in the Delaware County Court of Common Pleas opinion in Shankweiler v. Regan, 60 Pa.D&C.4th 20 (2002). That opinion, previously ignored by some as an anomaly or even erroneous, was actually cited with approval by the
Superior Court in Pusl.

The plaintiff in Pusl has since petitioned the Pennsylvania Supreme Court to accept an appeal and the defendant has filed an opposition to that petition. To date, the Supreme Court has not indicated whether it will hear the issue.

Negligent Entrustment

In the case of Carra-Cielski v. Scrimalli, PICS Case No. 09-1650, 2006-C-2735 (C.P. Lackawanna Aug. 18, 2009), Lackawanna County Court of Common Pleas Judge Carmen Minora seemed to expand the ambit of a negligent entrustment claim.

In his opinion, Minora acknowledged that the state Supreme Court has limited the theory of negligent entrustment to specific and narrow situations where the owner of a vehicle knew or should have known that, when permission was given to the driver, the driver was not in a condition to operate the vehicle.

However, Minora appeared to expand that rule of law under the facts of this case by allowing the claim of negligent entrustment to continue beyond the summary judgment stage on the grounds that defendant-driver was the grandson of the defendant-owner and was known to have a history, over two years leading up to the accident, of engaging in repeated incidents of underage drinking.

It was also noted that, on at least one occasion prior to the subject accident, the defendant-driver had even been found to have been drinking and driving the subject vehicle.

As such, Minora ruled that the repeated conduct of the defendant-driver arguably demanded greater vigilance, supervision and control by the defendant-owner over the vehicle that he owned. Accordingly, the court felt that a jury could conclude that the defendant-owner knew or should have known that the defendant-driver "could become incompetent to drive his motor vehicle."

The court found that the defendant-owner's willful blindness to his grandson's repeated illegal activities meant that the plaintiff could possibly prove to a jury the necessary elements constituting the cause of action of negligent entrustment. As such, the court felt that it was premature to dismiss that cause of action at that summary judgment stage of the case.

Crashes at Work

The state Supreme Court granted a petition for allowance of appeal from the Commonwealth Court decision in Heller v. Pennsylvania League of Cities and Municipalities, 950 A.2d 362 (Pa.Cmwlth. 2008), to address the issue of whether the court should find improper an exclusion in the defendant's policy that provided that any person receiving workers' compensation benefits was ineligible to receive UIM/UM motorist benefits for the same incident.

According to the Commonwealth Court's decision, the case involved a declaratory judgment complaint that was brought against a municipal insurer seeking a ruling that the exclusion at issue violated public policy. The underlying claim involved a police officer who had been injured in a motor vehicle accident during the course of his employment and who had consequently received workers' compensation benefits

The Commonwealth Court, in a decision authored by Judge James Gardner Colins, held that the policy's exclusion of UIM benefits where workers' compensation benefits were available to the claimant was not void as against public policy. It remains to be seen how the Supreme Court will decide this important issue.

Household Exclusion

The state Supreme Court issued its decision June 22 in Erie Insurance v. Baker, 2009 WL 1741756 (Pa. 2009). In a 4-3 decision, the court again upheld a UIM carrier's "household exclusion."

The case involved an injured party who was operating his motorcycle, which was insured for UIM coverage by Universal Underwriters at the time of the 1999 accident. The injured party initially settled with the third party tortfeasor and secured the limits of the Universal Underwriter's UIM coverage that covered his own motorcycle.

The injured party then sought to stack UIM coverage from a policy he had with Erie Insurance that covered his other three vehicles, but not the motorcycle he was riding at the time of the accident. That Erie Insurance policy had stacking affiliated with the available UIM coverage on the other three vehicles.

After receiving the claim for UIM benefits from the motorcyclist, Erie filed a declaratory judgment action asserting that it did not owe UIM benefits to the injured party in light of the "household exclusion" in its policy. This exclusion essentially provided that there was no UIM coverage available to the injured party under the Erie policy for incidents in which the insured was injured while occupying another motor vehicle owned by the insured, but not covered under the Erie policy.

The injured party attempted a "novel" argument to the Supreme Court -- that the household exclusion violated Section 1738 of the Motor Vehicle Financial Responsibility Law, pertaining to "stacking of uninsured and underinsured benefits and option to waive," in that the exclusion prevented the injured party from stacking his Erie UIM benefits when he elected and paid for such stacked UIM benefits.

The majority in the Pennsylvania Supreme Court decision -- Justices Jane Cutler Greenspan, J. Michael Eakin and Thomas G. Saylor and Chief Justice Ronald D. Castille -- held that the exclusion was a valid and unambiguous preclusion of coverage for risks that Erie had not accounted for when it determined the premium to be paid by the injured party.

Simply put, Erie was not required to pay out UIM benefits for a vehicle that was not covered under the Erie policy. The court also noted that the "application of the household exclusion in this case does not involve 'stacking' at all."

As such, Baker is yet another example of the Supreme Court upholding the validity of the "household exclusion" in automobile insurance policies. This policy exclusion has been upheld by the Supreme Court as valid and enforceable time and time again in cases including Prudential Prop. & Cas. Ins. Co. v. Colbert, 813 A.2d 747 (Pa. 2002); Eichelman v.. Nationwide Ins. Co., 711 A.2d 1006 (Pa. 1998). In Paylor v. Hartford Ins. Co., 640 A.2d 1234 (Pa.1994) the court upheld a similar "family car exclusion."

Seat Belt Defense

In June, the Superior Court reversed a decision by Judge Harold A. Thomson Jr. of the Pike County Court of Common Pleas that allowed for limited use of the seat belt defense in Gaudio v. Ford Motor Co., PICS Case 09-0927 (June 1, 2009) Donohue, J.; Fitzgerald, S.J., dissenting (61 pages). Although this case is a products liability case alleging a defective airbag system, it is reviewed here given that this decision, if upheld, could have had a far reaching effect on automobile accident litigation.

By way of background, the Seat Belt Statute, 75 Pa.C.S. § 4581, precludes any reference in a civil claim to the fact that the injured party was not using a seatbelt at the time of an accident.

Gaudio involved a decedent found in a ditch after a presumably single car motor vehicle accident. The air bag was deployed and the decedent was not wearing a seatbelt. It was alleged by the plaintiffs that the decedent was killed by a defective air bag system.

At trial, Thomson allowed the defense to introduce evidence that the decedent was not wearing a seat belt. Such evidence was offered by the defense not for the purpose of showing that the decedent was contributorily negligent, but rather, as part of the effort in this products liability case to show that the air bag system was not defective.

However, Thomson's decision was overruled by the Superior Court in a 2-1 decision. Despite a strong dissent by Judge James J. Fitzgerald, adopting the trial court's reasoning, the majority chose to uphold the seemingly airtight statutory prohibition against the use of the seatbelt defense in civil litigation matters, much to the relief of the plaintiffs bar across Pennsylvania.

Looking Ahead

Going into 2010, it appears that the issues in the novel post-Koken cases will remain a concern for litigators across the state. How the trial courts will handle the various post-Koken issues in the absence of appellate guidance remains to be seen. Presumably, as they have done to date, the trial courts will attempt to utilize the doctrine of stare decisis and rule on the issues in a fashion similar to what has been done in other similarly consolidated matters.

As stated previously in this column, it is incumbent upon the members of both sides of the automobile litigation bar to publicize these decisions and opinions so that a consistent common law can be developed for use in future cases. •

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. Cummins' civil litigation blog, "Tort Talk," may be viewed at www.torttalk.com.


This article originally appeared in the January 4, 2010 edition of the Pennsylvania Law Weekly, a statewide legal news publication.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate.

Motor Vehicle Accident Fatalities Down 7% in First Half of 2009

According to a recently released study from the National Highway Traffic Safety Administration (NHTSA), traffic-related fatalities were down 7% in first half of 2009 (Jan. to June) when compared to the first half of 2008. According to the study there were an estimated 17,871 such fatalities in 2008. So far in 2009, there has been an estimated 16,626 such accidents involving motor vehicles.

The study cites increased vehicle safety along with the Recesssion that has led to people traveling less as factors influencing the decrease. Surely, the recent high gas prices, nearly hitting $4.00 a gallon, led many people to stay off the road. For more info on this study, you can go to http://www-nrd.nhtsa.dot.gov/Pubs/811207.PDF.

The NHTSA also reported that seat belt use is up from 83% in 2008 to 84% in 2009. For that report, see http://www-nrd.nhtsa.dot.gov/Pubs/811100.PDF.

Obviously, these factors may all have an impact on the number of motor vehicle accident claims presented as well as the number of cases that may ever eventually get into litigation. Arguably, the across the board increase in seat belt use may also provide further support for those in favor of a repeal against the ban against the seat belt defense in civil litigation matters. The seat belt defense asserts that the plaintiff may have contributed to their own injuries by not wearing a seat belt, or raises the alternative argument that the injuries would have been less if the seat belt had been worn.

The ban against the seat belt defense in Pennsylvania was originally passed about 20 years ago when a large majority of people did not use seat belts on a regular basis and were, therefore, a large number of injured parties would have been exposed to the possibility of a seat belt defense if they were ever injured in a motor vehicle accident. According to the above report on seat belt use, there is only a slight minority who would be affected by the seat belt defense in this day and age.

What better way is there to convince the last remaining holdouts to wear their seat belts than to let them know that if they do not take the simple act of applying a seat belt (click!) when they get into a vehicle like the rest of the law-abiding society, it may impact their ability to secure a monetary recovery if they are injured in a motor vehicle accident.

Just a thought. Any comments? If so, click on the "comments" link just below this blog entry. Thanks.

Update on Seatbelt Defense Case

In an August 6, 2009 per curiam Order issued in the case of Gaudio v. Ford Motor Company, the Pennsylvania Superior Court denied a request to hear additional arguments regarding a defendant's right to introduce evidence concerning seat belt usage, or the lack thereof, in products liability cases involving questions about an automobile's crashworthiness.

This Order effectively upholds the Superior Court's 2-1 decision, found at ruling that the trial court should not have allowed any reference to the plaintiff's decedent's failure to wear a seatbelt in a crashworthiness case. Judge James Fitzgerald III dissented on this issue in the prior Superior Court opinion and suggested that the Courts could use guidance from the Pennsylvania Supreme Court on whether any and all evidence pertaining to the lack of seatbelt use should be precluded under all circumstances.

The original 2-1 Superior Court decision can be found on Westlaw at 2009 WL 1530669, and the Pike County trial court opinion by Judge Harold A. Thomson, Jr. can be found at 2007 WL 5077415.

It remains to be seen now whether the defense will appeal this case up to the Pennsylvania Supreme Court.

Status of the Prohibition of the Seat Belt Defense in Pennsylvania

Seat Belt Defense Ban Wearing Thin

A Superior Court panel upholds the ban but illustrates its weaknesses

By Daniel E. Cummins
Special to the Law Weekly
DanCummins@comcast.net

Although a Superior Court panel in Gaudio v. Ford Motor Co., PICS Case No. 09-0927 (June 1, 2009), voted 2-1 to uphold the legislative prohibition against the seat belt defense found under 75 Pa.C.S.A. Section 4581(e), the constrained tone of the majority opinion -- and the strong dissent by Senior Judge James J. Fitzgerald -- can be viewed as another assault on what had been previously viewed as an ironclad ban on use of the defense in civil litigation matters.

Gaudio involved a strict products liability action in which the plaintiff attempted to prove that the vehicle's airbag system was defective and caused the plaintiff's decedent's injuries in a single-car crash. During the accident, the decedent's vehicle slid off a road and landed in a ditch. The unbelted decedent was later found in the vehicle by emergency personnel along with an exposed and deflated airbag.

Ford Motor Co. defended the case by asserting that the airbag system was not defective and that the decedent's injuries were caused by other pre-accident factors including the fact that the decedent was not wearing his seat belt, was unnecessarily closer to the steering wheel, and was also reaching down to the floor area at the time the airbag was deployed.

The trial court, in an opinion issued by Pike County Common Pleas Judge Harold A. Thomson Jr., acknowledged the general legislative prohibition against mentioning a plaintiff's non-use of a seat belt during a civil trial. However, the trial court judge, striking a blow against the rarely questioned prohibition against the seat belt defense, held that defendants should be allowed to use the defense in very limited circumstances, such as the Gaudio case, where the plaintiff was seeking a monetary recovery in a matter where the issue of the lack of seat belt use by the injured party was a key factor in the resolution of the central question of whether the airbag system was defective. More specifically, the trial court felt that, as long as the defense was not being used to assert contributory negligence on the part of a plaintiff, it could perhaps be used for other limited purposes relevant to the case.

Thomson's decision was originally analyzed in my Oct. 1, 2007, Pennsylvania Law Weekly column titled "Time to Unbuckle the Seat Belt Defense?" That article noted Thomson's finding that the seat belt defense should be allowed in a limited fashion in certain cases "raises a question as to the continuing validity of the legislative bar against the use of the 'seat belt defense' in all civil matters."

In that previous article, it was also proposed that, in this day and age, now over 20 years after the seat belt law went into effect in 1987, the time had come to allow for the seat belt defense as an additional incentive to those last remaining non-compliant drivers to use seat belts, particularly given all of the scientific evidence existing today confirming that seat belts serve to prevent or minimize injuries in motor vehicle accidents.

However, the previous article concluded with the notion that, in light of the clear statutory mandate prohibiting the seat belt defense in civil litigation matters, it appeared that the change in the law would have to come from the Legislature as opposed to the courts of Pennsylvania.

A Constrained Superior Court

As anticipated, the judges in the majority of the Superior Court's decision in Gaudio opted to follow the letter of the law of the statutory prohibition against the seat belt defense and "construe[d] the legislative intent of the provision to be a blanket exclusion of evidence of seat belt usage in civil actions for any purpose, including to prove not only contributory negligence but also defect, causation and/or damages."

The majority in Gaudio also noted that it was not a proper function of the court to insert its judgment as to the propriety of the prohibition against the seat belt defense where the Legislature had already resolved the issue by a clearly worded statute. Thus, the majority opinion, including the emphasis that any change in the law would have to come from a Legislative amendment, appears to indicate that the court felt constrained to follow the law in this regard. This apparent dissatisfaction of the Superior Court with the scope of the prohibition against the seat belt defense can be viewed as another chipping away of the strength of that prohibition.

Fitzgerald's Dissent

The ironclad prohibition against the seat belt defense was also dented by Fitzgerald's clear dissent on the seat belt issue and his confirmation that the state's appellate courts have struggled with some of the issues involved and would benefit from guidance from the Pennsylvania Supreme Court on the question of the continuing validity and breadth of the prohibition.

In his dissenting opinion, Fitzgerald cited Daddona v. Thind, 891 A.2d 786 (Pa. Commw. 2006), and Foley v. Clark Equipment Co., 523 A.2d 379 (Pa. Super. 1987), in support of his decision that the trial court judge had properly allowed Ford Motor Co. to introduce evidence of the decedent's seat belt use, or lack thereof. Since contributory negligence was not a valid defense in this products liability case, the use of the seat belt defense in that regard was not squarely addressed by the Gaudio court. However, Fitzgerald noted that those prior appellate decisions supported allowing the seat belt defense to be utilized at least for the purposes of showing the lack of a defect (with respect to the airbags) and attempting to defeat any causation argument put forth by the plaintiff.

Time for Change

The time has come for a change in the law. As noted in my previous article on this topic, in more than 20 years since the passage of the law prohibiting the seat belt defense, scientific evidence has clearly established that using seat belts minimizes the chances of death and can minimize the extent of injuries in motor vehicle accidents. This evidence is so well-established that the wearing of seat belts for safety purposes is now deemed as common sense by the general public.

Compared to the few people who routinely used seat belts more than 20 years ago when the seat belt law was first passed, a large majority of motorists now use seat belts on such a routine basis that a seat belt defense at trial would likely only be applicable to that small number of non-law-abiding motorists lacking common sense and still foolish enough to break the law by riding in motor vehicles without belting up.

Fears by the plaintiff's bar that unbelted parties injured or killed through no fault of their own in a motor vehicle accident may be completely and unfairly barred from recovery by virtue of the injured party's failure to wear a seat belt can be tempered by Legislative limitations on the breadth of the seat belt defense. For example, the Legislature may mandate that an injured party's recovery may be limited up to a certain percentage but not entirely barred by the seat belt defense. Plaintiff's fears in this regard may also be addressed by their ability to secure expert witnesses to defeat the seat belt defense by showing that, even if the Plaintiff had been wearing a seat belt, the forces of the impact would have resulted in the same or similar injuries.

Realistically speaking, the allowance of the seat belt defense in automobile cases would really be no different than the currently allowed defense in premises liability cases that people have a duty to exercise due care in protecting themselves from injury by watching where they are walking. Also, in almost every situation, a plaintiff has a duty to mitigate his damages. What better way is there for a motor vehicle occupant to mitigate his potential damages and injuries than by simply clicking on a seat belt? Click. Done.

Last but certainly not least, it would also appear that the abolishment of the prohibition against the seat belt defense would further the now currently recognized policy of cost containment with respect to spiraling automobile insurance costs by limiting the damages recoverable by those few injured parties who continue to break the law by still refusing to wear seat belts after all of these years.

Only the Legislature Can Act

Treatises have noted that a substantial minority of jurisdictions allow for the seat belt defense given the obvious effectiveness of seat belts in reducing fatalities and injuries. See ""onuse of seatbelt as reducing amount of damages recoverable," 62 A.L.R.5th 537 (1998) by Christopher Hall. In those jurisdictions, defendants are permitted to point to the injured party's failure to use the seat belt to support contributory negligence or mitigation of damages defenses in automobile accident cases.

Pennsylvania should join those jurisdictions. However, it appears that any such change in the law will have to come from the Legislature. Public support may be secured for this change by asserting that an amendment doing away with the prohibition against the seat belt defense could, as noted, ultimately serve to contain the spiraling costs of automobile insurance rates for the law abiding citizens of Pennsylvania who do wear their seat belts as required.


Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins.


This article is reprinted here with permission from the June 29, 2009 issue of the Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is prohibited. All rights reserved. Please contact the author for permission to reprint or duplicate.

Pennsylvania Superior Court Upholds Legislative Prohibition Against Seat Belt Defense

In an opinion handed down yesterday, the Pennsylvania Superior Court, among other things, upheld the legislative prohibition against the seat belt defense found under 75 Pa.C.S.A. Section 4581(e) in the case of Gaudio v. Ford Motor Company, 2009 Pa.Super. 102 (June 1, 2009)(Fitzgerald, J., concurring and dissenting in part). The decision was a 2-1 decision on the seat belt defense issue and the issue of the decedent's pre-impact conduct, but unanimous in all other respects.

Gaudio is a strict products liability action in which the Plaintiff attempted to prove that the vehicle's airbag system was defective and caused the Plaintiff's injuries in a single car accident. The Plaintiff's decedent's vehicle slid off the road and landed in a ditch. The decedent was later found in the vehicle by emergency personnel along with an exposed and deflated airbag.

Ford countered by asserting that the airbag system was not defective and that the Plaintiff's decedent's injuries were caused by other pre-impact factors including the fact that the decedent was not wearing his seat belt and was unnecessarily closer to the steering wheel, reaching down to the floor area, when the airbag activated.

The trial court in Pike County recognized the general legislative prohibition of mentioning a plaintiff's non-use of a seat belt during a civil trial but felt that perhaps defendants should be allowed to use the defense in certain very limited circumstances such as in this case where the issue of seat belt use was central to the resolution of whether the airbag system was defective. More specifically, the trial court felt that, as long as the defense was not being used to assert contributory negligence on the part of the plaintiff, it could perhaps be used for other limited purposes relevant to the case.

I note that the trial court's decision was a topic of a previous article of mine from the October 1, 2007 Pennsylvania Law Weekly entitled "Time to Unbuckle the Seat Belt Defense?" To view this article, please click on this link: http://www.jdsupra.com/post/documentViewer.aspx?fid=1d844477-c47e-4922-8adb-846662f9c1c7.

In that article, I proposed that, in this day and age, essentially twenty years after the seat belt law went into effect, the time had come to add an additional incentive to those last remaining non-compliant drivers (as well as all drivers) to use seat belts particularly with all of the scientific evidence existing today that seat belts serve to prevent or minimize injuries in motor vehicle accidents.

I concluded the article by noting that in light of the clear statutory mandate prohibiting the seat belt defense in civil litigation matters, it appeared the the change in the law would have to come from the Legislature as opposed to the courts of Pennsylvania.

As anticipated, the Superior Court in Gaudio opted to follow the black and white letter of the statutory prohibition against the seat belt defense and "construe[d] the legislative intent of the provision to be a blanket exclusion of evidence of seat belt usage in civil actions for any purpose, including to prove not only contributory negligence but also defect, causation and/or damages."

The Superior Court also noted that it was not a proper function of the courts to insert its judgment as to the propriety of the prohibition against the seat belt defense where the Legislature had already resolved the issue by a clearly worded statute. Thus, the suggestion was that any change in the law would have to come from a Legislative amendment.

For the reasons stated in the above-referenced article, I again suggest that the time has come for that change in the law. More specifically, there is firmly established scientific evidence that shows that the use of seat belts minimizes the extent of injuries and chances of death. Also, a large majority of motorists use seat belts on a routine basis and the seat belt defense would only be applicable to that small number of vehicle occupants lacking common sense and still foolish enough to still ride in motor vehicles without belting up. It would also appear that the abolishment of the prohibition against the seat belt defense would further the current recognized policy of cost containment with respect to spiraling automobile insurance costs by limiting the damages recoverable by those few injured parties who broke the law by still refusing to wear seat belts after all of these years.

The Gaudio decision is also noteworthy for the Court's additional evidentiary ruling that the decedent's other pre-impact conduct, such as reaching to the floor prior to the impact and bringing his body closer to where the air bag would activate should have been precluded by the trial court. In this regard, the Superior Court upheld the general strict products liability rule that negligence concepts, such as the comparative or contributory negligence of an injured party, except in very limited circumstances not found to exist in this matter, were not permissible in a products case.

Also of note in the Gaudio decision was the Superior Court's upholding of the continuing viability of the crashworthiness doctrine. Lastly, the Superior Court also addressed the issue of the admissibility of evidence of compliance with Federal safety standards in a products case.

I again thank James Beck, Esquire of the Philadelphia office of the Dechert, LLP law firm for advising me of this decision. I also again note that Attorney Beck is the co-writer of an excellent legal blog entitled Drug and Device Law found at http://www.druganddevicelaw.blogspot.com/. I invite you to check out his blog.