Federal Court Rejects Complaint Containing Shotgun Pleading Against All Defendants

In the case of Comer v. American Transmission Systems, Inc., No. 23-1464 (W.D. Pa. May 29, 2025 Hardy, J.), the court granted a Defendant’s Motion to Dismiss where the Plaintiff engaged in improper shotgun pleading in a Complaint.

In this matter, the Complaint contained multiple counts that each adopted all of the allegations of all preceding Counts.  The Complaint also asserted multiple claims against multiple Defendants without specifying which of the Defendants were more specifically responsible for which alleged acts or omissions. The court found that the Complaint did not allow for an understanding as to which claims were brought against which of the Defendants.

In its decision, the court separately reaffirmed the Pennsylvania law that holds that a Defendant hiring an independent contractor is not liable for the injuries sustained by that independent contractor’s employees from conditions that were equally obvious to the independent contractor and its employees.

Here, on the liability issues pled, the court found that the allegations in the Complaint did not establish any superior knowledge on the part of the Defendant at issue, any peculiar risk, or any retained control. Rather, the court found the allegations to be legal conclusion not supported by any specific facts.

Lastly, the court affirmed the general rule of law that, given that the Plaintiff’s estate had obtained a worker’s compensation recovery, the estate was not permitted to sue the decedent’s employer in tort.

The court did allow the Plaintiff an opportunity to file a more specific Amended Complaint.

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


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

Source of image:  Photo by Wesley Tingey on www.unsplash.com.

Pennsylvania Supreme Court Expands Ability of Claimants to Secure Recoveries in Work-Related Fatal Accident Matters

In the case of Steets v. Celebration Fireworks, Inc., (WCAB), No. 3 MAP 2024 (Pa. May 30, 2025) (Op. by Donohue, J.), the Pennsylvania Supreme Court overturned decades of precedent in order to allow a new available of worker’s compensation claims to go forward. 

In this decision, the Supreme Court created new law and cleared the way for the estates of those individuals who died from work-related injuries to collect benefits related to claims for disfigurement and injury.

Justice Christine Donohue authored the Opinion and was joined by Chief Justice Deborah Todd and Justices Kevin Dougherty, Sallie Updyke Mundy and Daniel McCaffery. Justices David Wecht and Kevin Brobson dissented in separate Opinions.

Anyone wishing to review a copy of the Majority Opinion for this decision may click this LINK.

Justice Wecht's Dissenting Opinion can be viewed HERE.

Justice Brobson's Dissenting Opinion can be viewed HERE.


Source: Article – “Pa. High Court Rejects Years of Precedent Barring Recovery of Benefits For Workers Who Died From Work-Related Injuries,” By Riley Brennan The Legal Intelligencer (May 30, 2025).

Superior Court Addresses Applicability of Immunity Afforded To Third Party Defendants In Work Injury Cases

In the case of Brown v. Gaydos, No. 1132 WDA 2021 (Pa. Super. Dec. 7, 2023 en banc) (Op. by McCaffery, J.)(Stabile, J., Dissenting), the Pennsylvania Superior Court addressed issues regarding whether or not a Defendant was statutorily immune from liability under Pennsylvania’s Workers’ Compensation Act as the Plaintiff’s employer or co-employee under the facts presented.

According to the Opinion, the Plaintiff sued the Defendant individual for injuries that the Plaintiff sustained while operating a skid loader that the Defendant owned.

At the time of the accident, the Plaintiff was an employee of a company which the Defendant partly owned.

According to the Opinion, the Plaintiff had previously made a successful claim for workers’ compensation from the company that both men worked for at the time of the incident. The Plaintiff then filed a civil lawsuit alleging that the individual Defendant failed to properly maintain the skid loader or train the Plaintiff on how to use the device.

The Defendant filed a Motion for Summary Judgment alleging that he was immune to the personal injury lawsuit under the Workers’ Compensation Act because he was the Plaintiff’s co-employee at the same company.

The court noted that, under the Workers’ Compensation Act, employees who received workers’ compensation benefit generally may not sue their employers or co-employees for work-related injuries. Relative to protections afforded to co-employees, a co-employee may secure immunity for negligent actions that caused a Plaintiff’s injuries while the co-employee and the Plaintiff were “in the same employ.”

In this case, the Plaintiff argued that he was suing the Defendant in his capacity as the owner of the skid loader, not as a co-employee and, therefore, the Defendant was not immune from suit.

The majority of the Superior Court ruled in this matter that there were genuine issues of material facts regarding the ownership and the use of the skid loader. The majority ruled that the Plaintiff’s claim with respect to the co-employee immunity issue hinged on whether or not the Plaintiff had been working in the course of his duties as an employee of the employer company at the time of the accident.

Anyone wishing to review a copy of this decision may click this LINK.  Judge Stabile's Dissenting Opinion can be viewed HERE.


Source: Article - “Workers’ Comp Immunity May Not Shield Construction Company Owner From Job Site Injury Suit, Appeals Court Rules” by Aleza Furman of Pennsylvania Law Weekly (Dec. 8, 2023).

Source of image:  Photo by Silvia Brazzoduro on www.unsplash.com.

Pennsylvania Supreme Court Upholds Immunity of an Employer Where Plaintiff Claims Covered By Worker's Compensation

In the case of Franczyk v. Home Depot, Inc., No. 11 WAP 2022 (Pa. April 19, 2023) (Op. by Wecht, J.) (Todd, C.J, concurring), the court addressed immunity provided to employers in personal injury civil litigation matters given the employer’s exposure to worker’s compensation recoveries.

The Pennsylvania Supreme Court confirmed that the worker’s compensation system is a compromise that, in exchange for a no-fault insurance system, employers are granted immunity from tort liability for workplace injuries.

The court reiterated that, where worker’s compensation is available, such compensation is the exclusive remedy for an injured party against their employer.

The worker’s compensation statute precludes virtually any sort of negligence claim against the employer “on account” a physical injury that occurs in a workplace.

In this matter, the court found that a Plaintiff could not sue his employer for allegedly failing to investigate a dog bite that occurred at the place of employment and thereby obstructing the Plaintiff’s ability to bring a claim against the customer who owned the dog.

The court found that the plain language of the exclusivity clause under the Worker’s Compensation Act barred this action.  None of the exceptions were found to apply.

The court otherwise noted that employers have no general duty to protect and preserve the interests of their employees relative to a possible personal injury action.

Given that the Plaintiff in this matter was seeking a recovery of the same damages from the same injury that occurred in a workplace, the claim was found to be precluded from the Worker’s Compensation Act.

Anyone wishing to review a copy of this decision may click this LINK.  The Concurring Opinion by Chief Justice Todd can be viewed HERE.


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

Pennsylvania Superior Court Reviews Scope of Statutory Employer Status for General Contractors

In the case of Yoder v. McCarthy Construction, Inc., No. 1605 EDA 2021 (Pa. Super. Jan. 31, 2023 Bender, P.J.E., Panella, P.J., Sullivan, J.) (Op. by Bender, P.J.E.), the court addressed issues of whether or not a Defendant was a worker’s compensation statutory employer and, therefore, immune from any tort liability asserted by the Plaintiff, who was an employee of a subcontractor.

According to the Opinion, the jury in the underlying matter had entered a verdict for over $5.5 million dollars against the Defendant on the personal injury claims presented.

In reviewing the Worker's Compensation Law, 77 Pa.C.S.A. Section 462, the Superior Court noted that general contractors take on secondary liability for the payment of worker's compensation for the employees of any subcontractors.  In the event a subcontractor defaults on securing worker's compensation coverage, then the coverage purchased by the general contractor would apply.  In this regard, the general contractor is considered under the law to be a statutory employer of the subcontractor's employee.

In exchange for this secondary liability taken on by a general contractor under the law, the general contractor is granted immunity from any tort liability arising out of the same incident.   

The court found that, given that the Plaintiff had received worker’s compensation benefits, the Plaintiff was judicially estopped from denying his employee status. The court noted that the record confirmed that the Plaintiff was an employee of the subcontractor at issue, and not an independent contractor.

As such, the Pennsylvania Superior Court ruled that a statutory employer status is not limited to general contractors at a job site.

The court additionally noted that worker’s compensation immunity, including with respect to the issue of whether or not a Defendant is a statutory employer, is a jurisdictional issue that cannot be waived. 

The court additionally noted that whether a Defendant is a statutory employer is a question of law for the court, not a question of fact for the jury.

In the end, the Superior Court found that the Defendant was a statutory employer and was therefore immune from any liability.

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


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

Trivial Defect Doctrine Found Not To Apply on Private Property

In the case of Ramsey v. Buchanan Auto Park, Inc., No. 1:16-CV-01879-CCC (M.D. Pa. March 7, 2022 Connor, J.), the court granted in part and denied in part, post-trial motions in a slip and fall case after a verdict was entered in favor of the Plaintiff.

In one notable ruling, the court held that the trivial defect jury instructions that were developed in the context of public sidewalks was not applicable in the context of alleged defects on private property that allegedly injured business invitees.

The court noted that, in any event, this topic of liability was adequately covered by the jury instructions under which the jury was advised that, in order for the Plaintiff to recover, the property must have a condition which amounted to an unreasonable risk of harm to the Plaintiff.

This decision is also notable in that the Court found that photographs of the area where the Plaintiff fell that were taken in 2017 were admissible even though there were slight variations in the conditions of the area since the Plaintiff's 2014 fall down event.  The Court noted that the photos were authenticated by a witness and that any variations were pointed out to the jury by the witness and in the jury instructions.  

The court otherwise noted that damages for lost wages awarded by a jury is not necessarily excessive merely because the award exceeds the amount of the worker’s compensation lien. The court noted that the lien is not a cap on the Plaintiff’s claim for past wage loss.

However, the court did find that the award entered by the Plaintiff for the Plaintiff’s claim for loss of future earnings was against the weight of the evidence where the Plaintiff failed to present any evidence in this regard.

The court ordered a new trial on the issue of damages after finding that the jury may have erroneously included non-economic damages in its future earnings award.

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


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

PA Superior Court Rules that a Worker's Compensation Carrier Does Not Have a Right To Force a Plaintiff To Take Action Against a Third Party Tortfeasor To Recover a Lien

In the case of Loftus v. Decker, No. 611 WDA 2021 (Pa. Super. March 10, 2022 Olson, J., Murray, J., and Pellegrini, J.) (Op. by Pellegrini, J.), the Pennsylvania Superior Court quashed an appeal by a worker’s compensation carrier who had appealed the trial court’s denial of its Motion to Intervene in a personal injury case.

The record before the Court indicated that the injured party was a school bus driver who was injured during a motor vehicle accident.  During the course of the underlying matter, the injured party incurred a worker's compensation lien in excess of $196,000. 

According to the Opinion, the worker’s compensation carrier attempted to intervene after the Plaintiff-employee filed a Writ of Summons against an alleged tortfeasor.

The appellate court found that §319 of the Worker’s Compensation Act did not give a party any right, directly or indirectly, to take any action against a third-party tortfeasor. As such, the appellate court found that a worker’s compensation carrier could not force a Plaintiff employee to seek a recovery to satisfy a worker’s compensation statutory lien.

The Superior Court also noted that the Order from which the worker’s compensation carrier had appealed was not an appealable collateral Order.  Notably, the Pennsylvania Superior Court stated that it was addressing the issue of whether the Order at issue was an appealable collateral Order within its decision on the merits.  As such, the Court in this decision addressed the merits of the issues presented in this case relative to the ability of the worker's compensation carrier to intervene in the action.

As noted, this appeal was quashed.

Anyone wishing to review a copy of this decision may click this LINK.  The Dissenting Opinion written by Judge Murray can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 29, 2022).

Photo by cottonbro on www.pexels.com.

Personal Injury Claim By Family Claiming Worker Died From COVID-19 Virus Contracted At Work Dismissed Under Worker's Compensation Act

In the case of Barker v. Tyson Foods, Inc., No. 21-223 (E.D. Pa. Dec. 6, 2021 Diamond, J.), the court ruled that a claim that an employer willfully or wantonly exposed its employees to the COVID-19 virus was insufficient to overcome the exclusivity provisions of the Worker’s Compensation Act.  As such, the Defendant’s Motion to Dismiss was granted.

In this matter, the Plaintiff’s decedent passed away allegedly due to complications from the COVID-19 virus.

The Plaintiff alleged that the decedent’s employer caused the decedent’s wrongful death by failing to implement any safety measures after the outbreak of the COVID-19 pandemic. The Plaintiff also asserted that the Defendant allegedly maintained a work-while-sick policy.

The federal court granted the Defendant’s Motion to Dismiss after finding, in part, that the Plaintiff’s claims were barred by the Pennsylvania Worker’s Compensation Act.

The court more specifically held that willful or wanton disregard for employee safety was insufficient to overcome the exclusivity provisions of the Act.

Instead, the court noted that an employee could fall outside of the Worker’s Compensation Act only upon a showing that an employer’s fraudulent misrepresentation caused an aggravation of a pre-existing injury. In this case, the court found that the Plaintiff’s allegations did not amount to any showing that any alleged wrongful conduct on the part of the employer caused any aggravation of any pre-existing conditions of the Plaintiff’s decedent.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 21, 2021).

Traveling Employee Doctrine Reviewed by Pennsylvania Supreme Court

In the case of Peters v. W.C.A.B. (Cintas Corp.), No. 1 MAP 2020 (Pa. Nov. 17, 2021) (Op. by Mundy, J.), the Pennsylvania Supreme Court reviewed the “traveling employee” doctrine applicable to worker’s compensation cases.

Commentators have noted that this decision may apply to the personal injury litigation context when issues arise requiring a determination of whether an employer is a potential Defendant in a given matter.

In this decision, the Pennsylvania Supreme Court reviewed the contours of a traveling employee’s scope and course of employment.  The Court provided factors to consider whether such an employee could be considered to be within the scope and course of his employment at the time of an injury.

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

I send thanks to Attorney Bruce S. Zero of Powell Law in Scranton, PA for bringing this case to my attention.

Source of image:  Photo b. Andrea Piacquadio from pexels.com.

Worker's Compensation Carrier Allowed to Intervene in Third Party Action to Recover Lien

 

In the case of Gleason v. Alfred I. Dupont Hospital, No. 1872 EDA 2020 (Pa. Super. Aug. 5, 2021 McLaughlin, J., King, J., Pellegrini, J.) (Op. by Pellegrini, J.), the Pennsylvania Superior Court permitted a worker’s compensation carrier to intervene in a third party personal injury litigation as part of the worker’s compensation carrier’s efforts to protect its subrogation rights on its lien by challenging the parties’ allocation of the settlement proceeds.

According to the Opinion, the Plaintiff-husband sustained burn injuries as a result of a work-related event.

During the course of the third party litigation, the injured Plaintiff entered into a sizeable settlement with one of the alleged tortfeasor Defendants. A petition was then filed by the Plaintiff with the court for court approval of that settlement, including the allocation of 60% of that settlement to the loss of consortium claim.

The worker’s compensation carrier filed a Petition to Intervene in order to protect its subrogation rights. The worker’s compensation carrier was asserting that the allocation of a substantial portion to the settlement funds to the loss of consortium claim was unfair and was designed to preclude the worker’s compensation carrier from fully recovering on its subrogation rights.

When that initial Petition to Intervene filed by the worker’s compensation carrier was denied, the worker’s compensation carrier eventually filed a second Petition to Intervene which was also denied. An appeal followed.

As noted above, on appeal, the Pennsylvania Superior Court ruled that the worker’s compensation should have been allowed to intervene in a third party action to protect its interests.

The court found that the requirements of the Collateral Order Doctrine had been met under the case presented such that the worker’s compensation carrier should be entitled to intervene.

The court noted that, where the worker’s compensation carrier had paid nearly a $1 million dollars on behalf of the injured party as a result of the workplace accident, justice required that it be allowed to intervene in a case where the settlement agreement against the third party tortfeasor was structured in a manner that limited the worker’s compensation lien to only about a third of the amount of the lien.

As such, the Superior Court found that the trial court had abused its discretion in denying the intervention sought by the worker’s compensation carrier as that intervention was necessary to fully protect the worker’s compensation carrier’s subrogation rights and rights to challenge the apportionment of the settlement proceeds in the third party matter relative to the loss of consortium claim.

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

I send thanks to Attorney Thomas B. Helbig of Helbig Mediation and Arbitration for bringing this case to my attention.

Source of Image (not of structure in question):  Photo by Markus Spiske on unsplash.com.

Borrowed Servant Doctrine Applied to Support Entry of Summary Judgment in Favor of Employer

In the case of Solomon v. FedEx Supply Chain, Inc., No. 1:17-CV-02385 (M.D. Pa. Jan. 14, 2020 Rambo, J), Judge Sylvia H. Rambo addressed the current status of Pennsylvania law on the borrowed servant doctrine.

According to the Opinion, this personal injury case arose out of a forklift accident that occurred within the scope of the Plaintiff’s employment.

At the time of the accident, the Plaintiff was a contractual employee for an employment agency and was assigned to work as a forklift operator and order picker at a FedEx Distribution Center.

Under the contract between the temporary employment agency and FedEx, FedEx was responsible for, among other things, training, supervising, and instructing staffing personnel, as well as for maintaining a safe workplace. The contract also provided that FedEx retained direction and control over the staffing personnel as it determined in its sole discretion to be appropriate, including the right to accept, reject, and remove staffing personnel.

Under the agreement, the employment agency was solely responsible for selecting, hiring, disciplining, reviewing, evaluating, and terminating personnel, as well as for paying the worker’s wages and maintaining the benefits.

The Plaintiff was injured on his first day of work at the FedEx Distribution Center after undergoing training in the morning and being assigned to shadow another FedEx employee. During that first day of work, the Plaintiff was operating a standup forklift when he collided with a parked forklift and allegedly sustained injuries as a result.

The Plaintiff sued FedEx following this incident.

FedEx eventually filed a Motion for Summary Judgment requesting the dismissal of the Plaintiff’s claims for negligence on the basis that FedEx was Solomon’s statutory employer and was therefore immune from suit under the Pennsylvania Workers’ Compensation Act.

The court noted that, generally speaking, employees who are injured at work are limited to compensation available to them under the Workers’ Compensation Act and cannot separately sue their employers for personal injury.

The court noted that this immunity provided by the Workers’ Compensation Act extends from the direct employer as well as to other entities that may have “borrowed” the employee and if the latter exercises sufficient control over the employee.

Under the borrowed servant doctrine, the “crucial test” in determining whether a worker furnished by one person to another becomes the employee of the person to whom he is loaned is whether the worker passes under the latter’s right of control with regards not only to the work to be done but also to the manner of performing it.

A borrowed employee in this regard is considered to a statutory employee and the borrowing employer is considered to a statutory employer.

The court noted that, if there are issues of fact on the issue of whether a defendant is a statutory employer, the question is usually one to be decided by a jury.   However, where the material facts are not in dispute the question can be properly the subject of a Motion for Summary Judgment.

After applying the law to the facts before her, Judge Rambo concluded that FedEx was the Plaintiff’s statutory employer pursuant to the borrowed servant doctrine. Accordingly, the court found that FedEx was entitled to immunity under the Pennsylvania Workers’ Compensation Act to any personal injury suit. As such, FedEx’s Motion for Summary Judgment was granted.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Richard B. Wickersham, Jr., of the Philadelphia office of Post & Schell, P.C. for bringing this case to my attention.

Issues of Fact Stall Decision on Whether Defendant Employer Protected by Worker's Compensation Immunity Provisions

In the case of Ravier v. Gearhart, No. 6676-CV-2017 (C.P. Monroe Co. Nov. 1, 2019 Williamson, J.), the court denied a Motion for Judgment on the Pleadings filed by Additional Defendants in a personal injury action involving a workplace accident.

The Plaintiff filed suit against various Defendants who had joined certain Additional Defendants. The Additional Defendants filed a Motion for Judgment on the Pleadings asserting that they were immune from suit in this personal injury action under the Workers’ Compensation Act as the Plaintiff’s employer at the time of the accident.

The court denied the motion based upon their being issues of fact and uncertainty as to which entity was the Plaintiff’s employer at the time of her accident. The court noted that additional discovery was necessary before it could rule on the Additional Defendants’ claims of immunity.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 26, 2019).

Borrowed Servant Doctrine Addressed in Slip and Fall Case

In the case of Burrell v. Streamlight, Inc., No. 2016-CV-30144 (C.P. Montg. Co. May 9, 2019 Saltz, J.), the court addressed the borrowed servant doctrine and found that a Plaintiff was a worker who qualified as a borrowed servant such that the Defendant employer was immune from liability in a negligence cause of action because the worker had already received compensation under the Worker’s Compensation Act.

According to the Opinion, the Plaintiff was affiliated with an employment recruiting agency.  That employment agency placed the Plaintiff as a temporary worker at the Defendant’s facility.   After working for a period at that facility, the Plaintiff was injured when he slipped and fell at work.  

The Plaintiff filed suit against the Defendant employer. The Defendant filed an Answer which contained a New Matter defense alleging that the claims by the Plaintiff were barred by the Worker’s Compensation Act.    The Defendant asserted that it was immune from negligence liability because the Plaintiff was either acting as its employee or was a borrowed servant.  

After discovery, the Defendant moved for summary judgment on the issues presented.  

The court noted a general rule that, when a worker sustains an injury at the work place, compensation under the Worker’s Compensation Act was generally the exclusive remedy against the employer for a monetary recovery.  

Under the borrow servant doctrine, workers’ compensation immunity also applied to the true master when the servant had been loaned to another.   The test for determining whether a worker qualified as a borrowed servant was the right of control over the manner of the employee’s work.  

In this case, the court noted that, although the Plaintiff was initially hired by the temp agency, he worked under the control and supervision of the Defendant facility.   The Defendant facility trained the Plaintiff, set us schedule, and set the Plaintiff’s work duties.   In contrast, the temp agency only handled the payroll function, which the court considered to be peripheral.   The court also rejected the Plaintiff’s argument that the specific tasks he was performing at the time of his accident was not within his duties and, therefore, the borrowed servant doctrine should not be applied.    The court noted that there is evidence to the contrary, showing that the Plaintiff was either asked to perform the worker duty at issue or had volunteered to perform it.  

In light of all of the factors presented, the court found that the Plaintiff was indeed a borrowed servant and that the Defendant was therefore immune from liability under the Worker’s Compensation Act.

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

Source: “Digest of Recent Opinions.”  Pennsylvania Law Weekly (June 4, 2019).

Several Notable Civil Litigation Trial Issues Addressed By Pennsylvania Superior Court

The Pennsylvania Superior Court addressed several notable recurring civil litigation issues in the case of Nazarak v. Waite, 2019 Pa. Super. 235 (Pa. Super. Aug. 2, 2019 Lazarus, J., Murray, J., Stevens, P.J.E.)(Op. by Stevens, P.J.E.).

The case arose out of a rear end motor vehicle accident.  The Plaintiff was driving a commercial vehicle and was on the job at the time of the accident.  As such, he received worker's compensation benefits in the form of medical payments and indemnity payments.

The case proceeded through discovery and a trial at which a verdict was entered in favor of the Plaintiff.  On appeal, the Pennsylvania Superior Court affirmed the trial court's denial of the Defendant's post-trial motions.

Among the notable rulings by the Pennsylvania Superior Court were the following:

-Issues regarding the admission of the worker's compensation lien into evidence.

The Pennsylvania Superior Court affirmed the trial court's ruling to allow the Plaintiff to present to the jury the amount of the worker's compensation lien. 

 The Superior Court rejected the defense contention that the admission of the evidence pertaining to the lien violated the collateral source doctrine.  The Court noted that the reasoning behind the doctrine was not implicated in this case because it was the Plaintiff who was introducing the evidence of a prior recovery and not the Defendant.

The Nazarak Court also rejected the defense argument that the admission of the lien amount into evidence and the allowance of a recovery in that regard amounted to a double recovery for the Plaintiff.  The Court confirmed that the Plaintiff was required to pay back the lien amount to the worker's compensation carrier and that, as such, there was no double recovery by the Plaintiff.

The Superior Court also rejected the defense contention that, by allowing into evidence the fact that the Plaintiff had been paid such medical and wage loss benefits, the trial court usurped the function of the jury to decide the issue of causation because such evidence suggested that the Plaintiff's injuries were from the accident.  This contention by the defense was rejected by the Superior Court in this Narzarak decision.

-The Court also rejected the defense argument that it was error for the trial court to have allowed the introduction of the compromise and release document from the worker's compensation case into evidence at trial.  The defense had asserted that this was impermissible evidence of a settlement agreement in violation of 42 Pa.C.S.A. Section 6141.  The Superior Court noted that the Defendants in this case were not parties to that separate worker's compensation settlement agreement and, as such, Section 6141 was not directly implicated.  However, the Superior Court went onto note that while the admission of this evidence may have violated the letter of the law in Section 6141, such an error was not a reversible error where the evidence was only used by the Plaintiff to establish the amount of the lien and not with respect to proving any liability issues (liability was admitted by the defense at trial).


-Issues regarding the presentation of expert testimony.

The Court in Nazarak rejected the defense contention that the Plaintiff's vocational expert was allowed to testify beyond the fair scope of her report.  After reviewing the expert's testimony as compared to the expert's report, the Court rejected this argument.

The Court also rejected the argument by the defense that the Plaintiff had violated the hearsay rule by utilizing the Plaintiff's testifying orthopedic expert report to comment upon the report and opinions of a neuro-radiologist expert who was not called to testify.  The defense contended that this strategy violated the rule of law that prohibited one expert from acting as a mere conduit for the opinion of another expert.  The Nazarak court reviewed the testimony of the testifying orthopedic expert and found that that expert had not merely acted as a conduit for the other expert's opinion, but rather had permissibly referred to and relied upon that other expert's opinions to formulate the orthopedic expert's own opinions on the case presented.


Anyone wishing to review this case may click this LINK.

PA Supreme Court Reaffirms Rule that Workers' Compensation Carrier May Not Directly Enforce Its Subrogation Rights Against Tortfeasor

In the case of Hartford Ins. Grp. v. Kamara, No. 24 EAP 2017 (Nov. 21, 2018) (Op. by Baer, J.), the Pennsylvania Supreme Court addressed the issue of whether a workers’ compensation carrier could bring a third-party action against an alleged tortfeasor on behalf of an injured employee in order to recover the amount of money paid out in workers’ compensation benefits where that injured employee did not independently sue the tortfeasor, did not join in the carrier’s action, and did not assign her cause of action to the carrier.  

This matter arose out of an incident during which the Plaintiff was struck as a pedestrian while the Plaintiff was in the scope and course of her employment.   The Plaintiff had recovered workers’ compensation benefits through the Hartford Insurance Group.

When the Plaintiff herself did not seek to recover damages against the third party tortfeasors, the workers’ compensation carrier sought to recover on its subrogation rights under the workers’ compensation act by filing a suit against the tortfeasors.  

After this case worked its way up to the appellate ladder, the Pennsylvania Supreme Court in this case reaffirmed the “well-settled proposition that the right of action against the tortfeasor remains in the injured employee.”   The Pennsylvania Supreme Court ruled that, unless the injured employee assigns her cause of action or voluntarily joins the litigation as a party Plaintiff, the workers’ compensation carrier may not enforce its statutory right to subrogation by filing an action directly against the tortfeasor.  

As such, the Supreme Court of Pennsylvania vacated the Superior Court’s judgment and reinstated the decision of the trial court which had sustained the Preliminary Objections filed by the tortfeasor which serve to dismiss the carrier’s Complaint with prejudice.  

Anyone wishing to review the Majority Opinion by Justice Baer may click HERE.

The Dissenting Opinion by Chief Justice Saylor can be viewed HERE.

The Dissenting Opinion by Justice Todd can be viewed at this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg, Pennsylvania law firm of Schmidt Kramer for bringing this case to my attention.

Superior Court Addresses Propriety of Worker's Compensation Carrier Suing Tortfeasor for Recovery of Lien

In the case of The Hartford Ins. Grp. v. Kamara, No. 976 EDA 2016 (Pa. Super. Feb. 10, 2017 Olson, Solano, Fitzgerald, JJ.)(Op. by Olson, J.), the court ruled that a a workers' compensation carrier could pursue claim against third-party tortfeasors by asserting the claim on behalf of the injured employee to establish the tortfeasors' liability to the injured employee, as opposed to bringing a subrogation claim.

The court rejected the argument by the defendants  that the Complaint should have been dismissed because appellant was attempting to assert subrogation directly against third-party tortfeasors in violation of the Workers' Compensation Act which provided that a right of action against tortfeasors remained in the injured employee such that an employer's/insurer's right of subrogation had to be achieved through an action brought in the name of the injured employee or joined by the injured employee.

The Superior Court held that the worker’s compensation carrier properly brought the action on behalf of the injured employee to establish the tortfeasors' liability to her. The Court reasoned that the Workers' Compensation Act did not require an injured employee to be party to a suit for an employer or insurer to be able to assert its subrogation rights, but merely required the suit to be brought on behalf of or in the name of the injured employee.

Anyone wishing to review this Opinion online may click HERE.

 

Source:  “Digests of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2017).

Scope of Employer's Liability Exclusion in Commercial General Liability Policy Narrowed by PA Supreme Court

The Pennsylvania Supreme Court recently issued a notable decision in the case of Mutual Benefit Ins. Co. v. Politsopoulos, 60 MAP 2014 (Pa. May 26, 2015) in which the Court essentially eviscerated the scope of the employer's liability exclusion found in most commercial general liability insurance policies as applied to additional insureds.

The decision applies to the following typical fact scenario:  Company A owns a property and leases it to Company B to run a store on the premises.  The lease requires Company B--the store--to add Company A--the owner--as an additional insured under the store's commercial general policy.

An employee of Company B--the store--is hurt on the job in a slip and fall.  The employee cannot sue the store for personal injury under the store's immunity under the framework of applicable worker's compensation law.

Accordingly, the injured store employee instead sues Company A--the owner of the premises for a recovery over and above any worker's compensation benefits secured.

When the suit is served on Company A--the owner--that party will send the claim over to the commercial general liability carrier and request a defense.  Prior to the Pennsylvania Supreme Court case noted above, most commercial general liability carriers took the position that the employer's liability exclusions in the commercial general liability policy supported a denial of liability coverage not only to the store that obtained the policy but also to Company A--the owner.

Here, in the Mutual Benefit Ins. Co. v. Politsopoulos case, the Pennsylvania Supreme Court ruled that the “employer’s liability” exclusion in a restaurant’s umbrella commercial liability policy did not preclude coverage for a negligence suit brought by a restaurant employee against the policy’s “additional insureds,” who were the owners of the property on which the restaurant conducted its business.

The Court ruled that the exclusion, which provided that the policy barred coverage for injuries to employees of “the insured,” was ambiguous.  Accordingly, under general principles of contract construction applicable in Pennsylvania, the ambiguity was construed against the commercial general liability carrier and the exclusion was more narrowly construed as applying only to claims asserted by employees of “the insured” against whom the claim was directed.  The court held that because the property owners in this case were not the underlying plaintiff’s employers, the exclusion did not apply.

The Majority Opinion written by Chief Justice Saylor can be read online HERE. 

The Concurring Opinion by Justice Eakin can be viewed HERE.

Notably, commentators have indicated that this decision would be applicable to any type of contractual arrangement where one party agrees to list another as an additional insured in a commercial liability policy, which are typical in construction and vendor contracts as well.

I send thanks to Attorney Richard Fine of the Scranton, PA law firm of Fine & Wyatt for bringing this case to my attention.

PA Supreme Court Reaffirms No Direct Right of Action for Subrogation Held by Employer or Worker's Comp Carrier

In its recent decision in the case of Liberty Mut. Ins. Co. v. Dotmar Paper Co., 19 WAP 2014 (Pa. April 27, 2015)(Maj. Op. by Baer, J.)(Saylor, C.J., Dissenting), the Pennsylvania Supreme Court addressed the right of an employer, and/or the employer's worker's compensation carrier, to pursue a subrogation claim directly against a third party tortfeasor when the injured employee has not filed a claim against the tortfeasor or assigned his or her right to do so to another.

According to the Opinion, the injured employee was in the scope and course of his employment with Schneider National slipped and fell in the parking lot of the tortfeasor Defendant Dotmar Paper Company.  The employee was allegedly injured and was paid worker's compensation benefits by his employer's worker's compensation carrier.

When the injured employee did not sue the landowner, or otherwise assign his right to sue to anyone, the worker's compensation carrier took it upon itself to sue the landowner, seeking to recover the worker's compensation benefits it paid out to the injured employee.  The landowner defendant filed a demurrer essentially arguing that the worker's compensation carrier had no standing to bring such a suit under the law.

Both the Elk County trial court and the Pennsylvania Superior Court ruled that Section 319 of the Worker's Compensation Act did not permit such a claim and the insurer appealed.  The Pennsylvania Supreme Court affirmed the Superior Court's decision.

The Pennsylvania Superior Court reaffirmed the rule that, under Section 319 of the Worker's Compensation Act, a right of action is granted to the injured party employee.  The Court held that the employer's/worker's comp insurer's right of subrogation pursuant to Section 319 must be asserted through a single action brought in the name of the injured employee or included in any claim brought by the injured employee against the tortfeasor.

In this matter, the injured employee never pursued a case and the Pennsylvania Supreme Court ruled that the employer and/or the worker's compensation carrier could not otherwise pursue any subrogation claim for worker's compensation benefits paid out to the injured employee related injuries caused by the tortfeasor.

The Majority Supreme Court Opinion can be viewed HERE.

Chief Justice Saylor's Dissent can be viewed HERE.

Madame Justice Todd's Dissent can be viewed at this LINK.

 

I send thanks to Attorney Scott Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.

Intermediate Form of Indemnity Agreement in Contractor-Subcontractor Construction Agreement Found

In its recent unpublished "non-precedential" decision in the construction accident case of Bracken v. Burchick Construction, 1432 WDA 2012 (Pa. Super. Oct. 10, 2014 Panella, J.), the Pennsylvania Superior Court found that language used in the parties’ Subcontractor Agreement was sufficient to establish an intent to enter into an intermediate form of an indemnity agreement such that, after waiving its immunity under the Workers’ Compensation Act, a subcontractor may be deemed to possibly be required to reimburse the general contractor for a $3.1 million dollar settlement owed after the death of the subcontractor’s own employee as a result of a work place accident.  

According to the Opinion, the decedent Plaintiff’s representative filed a lawsuit against the general contractor for the construction project.  The general contractor then filed a Complaint to join the Plaintiff’s decedent’s employer, who was a subcontractor on the same work site.  

The court found that under language contained in the Subcontractor Agreement, the subcontractor agreed to assume the entire liability for any injury or death suffered by its employees as a result of the subcontractor’s negligence.   The court viewed the language of the subcontract to be considered an intermediate form of an indemnity agreement.   Accordingly, the subcontractor was found to have agreed to indemnify the general contractor for the entire liability if the liability stems from the subcontractor’s partial or sole negligence.

 

Judge Panella's majority Opinion can be viewed HERE.

 

Judge Olsen's dissenting Opinion can be viewed HERE.

 

 

 

 

 

 

Pennsylvania Supreme Court Addresses Scope of Statutory Employer Immunity

In its recent decision in the case of Patton v. Worthington Associates, Inc., 2014 WL 1236499 (Pa. March 26, 2014) (Opinion by Saylor, J.) (concurring Opinion followed by Baer, J.), the Pennsylvania Supreme Court held that neither a subcontractor nor a subcontractor’s sole shareholder was an “independent contractor” relative to the statutory employer provisions of the Workers’ Compensation Act. 

 

By way of background, a subcontractor in this matter brought a negligence action against the general contractor to recover for injuries alleged sustained at a work site from a 14 foot fall.  

 

After a trial in the Bucks County Court of Common Pleas, the trial court entered judgment on the verdict in favor of the Plaintiffs and denied the general contractor’s Motion for Judgment Notwithstanding the Verdict (JNOV).   The general contractor appealed the Supreme Court ruled as noted above.  

 

The Pennsylvania Supreme Court noted that, pursuant to the Workers’ Compensation Act, general contractors are deemed to bear secondary liability for the payment of workers’ compensation benefits to injured workers employed by their subcontractors and, in this sense, general contractors are considered to be “Statutory Employers” relative to workers’ compensation liability, even though they are not common-law employers of the subcontractor’s employees.

 

Accordingly, the court went on to note that such Statutory Employers, including general contractors, could enjoy a measure of immunity from liability under the Workers’ Compensation Act for tort claims pertaining to work-related injuries.  

 

The Supreme Court went on to note that the governing law should have been applied by the trial court at the summary judgment stage before this case ever reached a trial in which the jury ruled in favor of the Plaintiff.  

 

In light of this decision in the case of Patton v. Worthington Associates, many general contractor and subcontractor Defendants in construction cases where a construction worker has been injured on the job have been amending their Answer and New Matter, or in federal court, their Answer and Affirmative Defenses, to include the statutory employer defense in order to preserve that defense to be raised at the Motion for Summary Judgment stage of the case.  

 

Anyone wishing to review a copy of Justice Saylor's majority opinion in the case of Patton v. Worthington Associates, Inc., may click this LINK.  Justice Baer's concurring opinion may be viewed HERE.