I have corrected the link to Judge Nealon's gist of the action doctrine decision in the case of Healey v. Wells Fargo. Sorry for the mix-up caused by my continuing learning how to use Google Docs correctly.
Here is the link again:
https://docs.google.com/file/d/0B83Pxa3TYcXMN0ZONG5kQThTRkM3Y3UxaG9CQmtndw/edit
Tuesday, April 10, 2012
Increased Fees for Public Access To Federal Court Documents
The Wall Street Journal blog has reported that PACER fees per page went up from $.08 to $.10 as of April 1, 2012. Here's a link to that blog post: http://blogs.wsj.com/law/2012/03/23/pacer-fee-hike-our-2-cents/
A tip of the hat to Attorney Bill Byrne of the Hoegen & Associates Law Firm in Wilkes-Barre, PA for bringing this info to my attention.
A tip of the hat to Attorney Bill Byrne of the Hoegen & Associates Law Firm in Wilkes-Barre, PA for bringing this info to my attention.
Sunday, April 8, 2012
HAVE YOU REGISTERED FOR THE TORT TALK EXPO 2012 YET?
Have you registered for the Tort Talk Expo 2012 CLE Seminar set to take place on May 3, 2012 at the Mohegan Sun Casino? Please consider doing so now before the event sells out.
So far there are approximately 50 registrants already planning to attend. The registrants to date consist of claims professionals, plaintiff's attorneys, and defense attorneys. A number of Northeastern Pennsylvania state and federal judges are also expected to attend the Cocktail Reception following the event.
This event promises to be a great networking opportunity and a leisurely chance to secure required CLE credits. The written materials will summarize a year's worth of Tort Talk blog posts and contain other useful information for your practice. Even better, there will also be door prizes and chances to win raffle prizes.
Hope to see you there so I can say THANKS! for supporting my efforts with Tort Talk.
Hope to see you there so I can say THANKS! for supporting my efforts with Tort Talk.
TORT TALK EXPO 2012
Presented by
Daniel E. Cummins, Esquire
at the
MOHEGAN SUN CASINO at POCONO DOWNS
Thursday, May 3, 2012
12:30 p.m. to 4:30 p.m.
2 Substantive & 1 Ethics CLE Credits
Followed by Complimentary Cocktail Hour (4:30 – 6:30 p.m.)
at Breakers in the Mohegan Sun
12:30 – 1:00 pm Registration
1:00 – 1:30 pm: The Tort Talk Auto Law Update
Presenter: Daniel E. Cummins, Esq.
1:30 – 2:00 pm: The Tort Talk Civil Litigation Update
Presenter: Paul T. Oven, Esq.
2:00 – 2:15 pm BREAK
2:15 - 3:15 pm: Introductory Medical Conditions & Radiological Issues
in Auto Accident Injuries
Presenter: Dr. Michael L. Brooks, M.D., J.D., FCLM
3:15 – 3:30 pm BREAK
3:30 – 4:30 pm A View from the Bench: Ethical Issues in Legal Writing and Advocacy
Before the Court in an Electronic World
Moderator:
Hon. Joseph Van Jura (Ret.)
Presenters:
Pennsylvania Supreme Court Justice J. Michael Eakin
President Judge of Superior Court Correale F. Stevens
U.S. Third Circuit Court of Appeals
Judge Thomas I. Vanaskie
Luzerne County President Judge Thomas Burke, Jr.
COCKTAIL RECEPTION TO FOLLOW
AT BREAKERS
4:30p.m. - 6:30p.m.
In addition to Door Prizes and Raffle Prizes, there will also be a number of Table Vendors at the seminar displaying their services offered to civil litigators. To date, the following providers have agreed to sponsor and appear as Table Vendors at the event (in alphabetical order):
BMS Consultants, Inc.: http://www.bmsconsultants.com/
Courtside Documents: http://www.courtsidedoc.com/
Digital Justice: http://www.digitaljustice.net/
Minnesota Lawyers' Mutual: http://www.mlmins.com/
Northeastern Rehabilitation Associates: http://www.nerehab.com/
Precise, Inc.: http://www.precise-law.com/
RecordTrak: www.recordtrak.com/
Ringler Associates: www.ringlerassociates.com/
Surveillance Professionals Investigations, LLC:
Veritext: http://www.veritxt.com/
Costs below cover both CLE Seminar and Cocktail Reception:
Claims professionals/representatives
and risk managers
$25.00
Lawyers
$165.00
Please make checks payable to "Tort Talk."
For reservations, please complete the requested information below and return it to the address noted below or e-mail it to dancummins@comcast.net.
Name(s)____________________________________
Firm/Company_______________________________
PLEASE MAIL REGISTRATION FORM AND PAYMENT TO:
TORT TALK
c/o Daniel E. Cummins, Esq.
Foley, Cognetti, Comerford, Cimini & Cummins
507 Linden Street
Suite 700
Scranton, PA 18503
Judge Terrence R. Nealon of Lackawanna County Addresses Gist of the Action Doctrine
In his recent March 20, 2012 decision in the case of Healey v. Wells Fargo, No. 2011-Civil-3340 (C.P. Lacka. Co. March 20, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a Defendant’s Preliminary Objections raised in a case involving a lender and breach of contract and tort claims.
Of note in this decision is Judge Nealon’s analysis of the gist of the action doctrine and its impact on the Plaintiff’s claim for negligent infliction of emotional distress and other tort claims pled in this matter.
While the facts involved in this case are convoluted, the opinion is a worthwhile read if you are faced with a gist of the action doctrine issue. This doctrine basically maintains the distinction between breach of contract claims and tort claims and precludes Plaintiffs from recasting ordinary breach of contract claims as tort claims. Stated otherwise, under Pennsylvania law, a cause of action framed as a tort but reliant upon contractual obligations will be analyzed to determine whether the cause of action properly lies in tort or contract.
Judge Nealon reviewed in this decision the law of the gist of the action doctrine which serves to bar tort claims that arise solely from a contractual relationship between the parties, when the alleged duties breached are grounded in the contract itself, where any liability stems from the contract, when the tort claim essentially duplicates the breach of contract claims, and/or where the success of the tort claim is dependent on the success of the breach of contract claim.
Ultimately, the court in this case of Healey v. Wells Fargo found that the gist of the action doctrine served to bar certain tort claims presented by the Plaintiff.
Anyone desiring a copy of Judge Nealon’s 49 page opinion may click here.
Of note in this decision is Judge Nealon’s analysis of the gist of the action doctrine and its impact on the Plaintiff’s claim for negligent infliction of emotional distress and other tort claims pled in this matter.
While the facts involved in this case are convoluted, the opinion is a worthwhile read if you are faced with a gist of the action doctrine issue. This doctrine basically maintains the distinction between breach of contract claims and tort claims and precludes Plaintiffs from recasting ordinary breach of contract claims as tort claims. Stated otherwise, under Pennsylvania law, a cause of action framed as a tort but reliant upon contractual obligations will be analyzed to determine whether the cause of action properly lies in tort or contract.
Judge Nealon reviewed in this decision the law of the gist of the action doctrine which serves to bar tort claims that arise solely from a contractual relationship between the parties, when the alleged duties breached are grounded in the contract itself, where any liability stems from the contract, when the tort claim essentially duplicates the breach of contract claims, and/or where the success of the tort claim is dependent on the success of the breach of contract claim.
Ultimately, the court in this case of Healey v. Wells Fargo found that the gist of the action doctrine served to bar certain tort claims presented by the Plaintiff.
Anyone desiring a copy of Judge Nealon’s 49 page opinion may click here.
UPCOMING PDI CLE SEMINARS
UPCOMING PENNSYLVANIA DEFENSE INSTITUTE (PDI) 2012 CLE PROGRAMS
April 19: Joint North/South Regions Young Lawyers Program Session 1:
Dauphin County Bar Association in Harrisburg
April 27: East Region Young Lawyers Program Session 3: Cozen & O’Connor in Philadelphia
May 17: South Region Regional CLE Program & Reception: Hollywood Casino in Grantville
June TBD: West Region Young Lawyers Program Session 1: Location TBD
June 21: Joint North/South Regions Young Lawyers Program Session 2: Location TBD
June 28: West Region Regional CLE Program: Sheraton Station Square Hotel in Pittsburgh
July TBD: West Region Young Lawyers Program Session 2: Location TBD
July 19-20: PDI Annual Meeting, including final Young Lawyers Session for all Regions: Bedford Springs Resort in Bedford Springs, PA
August 22: North Region Regional CLE Program & Reception: Mohegan Sun Casino in Wilkes-Barre
April 19: Joint North/South Regions Young Lawyers Program Session 1:
Dauphin County Bar Association in Harrisburg
April 27: East Region Young Lawyers Program Session 3: Cozen & O’Connor in Philadelphia
May 17: South Region Regional CLE Program & Reception: Hollywood Casino in Grantville
June TBD: West Region Young Lawyers Program Session 1: Location TBD
June 21: Joint North/South Regions Young Lawyers Program Session 2: Location TBD
June 28: West Region Regional CLE Program: Sheraton Station Square Hotel in Pittsburgh
July TBD: West Region Young Lawyers Program Session 2: Location TBD
July 19-20: PDI Annual Meeting, including final Young Lawyers Session for all Regions: Bedford Springs Resort in Bedford Springs, PA
August 22: North Region Regional CLE Program & Reception: Mohegan Sun Casino in Wilkes-Barre
Wednesday, April 4, 2012
Pushback by Facebook.com to Discovery Efforts
Below is an article showing that Facebook is firing back at non-users logging in to inspect a Facebook page:
http://www.cnn.com/2012/03/23/tech/social-media/facebook-employers/index.html?hpt=hp_t3
Also, as noted in the below article, a Senator is drafting a bill to prevent employers from accessing Facebook:
http://www.tweaktown.com/news/23171/senator_drafting_bill_to_prevent_potential_employers_from_requiring_facebook_logins/index.html
I send thanks to Attorney Christopher M. Horn of the Norristown, PA law office of Kane, Pugh, Knoell, Troy & Kramer, LLP for bringing these articles to my attention.
http://www.cnn.com/2012/03/23/tech/social-media/facebook-employers/index.html?hpt=hp_t3
Also, as noted in the below article, a Senator is drafting a bill to prevent employers from accessing Facebook:
http://www.tweaktown.com/news/23171/senator_drafting_bill_to_prevent_potential_employers_from_requiring_facebook_logins/index.html
I send thanks to Attorney Christopher M. Horn of the Norristown, PA law office of Kane, Pugh, Knoell, Troy & Kramer, LLP for bringing these articles to my attention.
ARTICLE: UM/UIM Rejection Form Language Should Be Reviewed Carefully
The below article of mine appeared in the March 27, 2012 edition of the Pennsylvania Law Weekly:
UM/UIM Rejection Form Language Should Be Reviewed Carefully
ByDaniel E. Cummins
Pennsylvania Law Weekly
March 27, 2012
Under Pennsylvania's Motor Vehicle Responsibility Law, there are a number of across-the-board requirements that automobile insurance carriers must follow during an insured's application and purchase of an automobile insurance policy. Among the many requirements are mandated forms, containing specified language, that insurance companies must present to the applicant and secure signatures on during the insured's purchasing of the policy.
For example, the MVFRL mandates that a UIM carrier is required to provide UM and UIM coverage in an amount at least equal to the liability limits selected by its insured unless a valid rejection form, written in accordance with the specific form language mandated by 75 Pa.C.S. § 1731(c), was executed by the insured. Under the separate 75 Pa.C.S. § 1731(c.1), the Pennsylvania Legislature provided that "[a]ny rejection form that does not specifically comply with this section is void."
Litigation over the propriety of these forms typically arises later after the injured party insured has been in a motor vehicle accident and wishes to challenge whether he or she properly rejected or chose reduced UM or UIM coverages under his or her own policy.
A number of recent state and federal court decisions in Pennsylvania have confirmed that the courts of this commonwealth will engage in a strict constructionist approach when reviewing these challenges. From these decisions, it is readily apparent that the even the slightest deviation from the statutorily mandated language will result in the forms and, therefore, the elections of reduced UM or UIM coverages, rendered null and void as a matter of law.
Extra Language Renders Form Void
In its recent decision in the case of Jones v. Unitrin Auto and Home Insurance Co., the Pennsylvania Superior Court had an opportunity to address the propriety of an underinsured motorist's (UIM) benefits rejection form in a declaratory judgment action filed by an injured party insured. The novel question presented in this case of first impression was whether the inclusion of additional, or extra language, by the UIM carrier at the end of its UIM insurance rejection form that was over and above the statutorily mandated language failed to specifically comply with the MVFRL and was therefore void.
The court noted that precedent required it to construe the MVFRL "liberally" to give effect to the recognized goals of that law, one of which was to "afford the injured claimant the greatest possible coverage." The court also recognized that, in cases involving close questions, the courts were required to "interpret the intent of the legislature and the language of the insurance policies to favor coverage for the insured."
Turning to the facts before it, the court in Jones noted that the UIM rejection form utilized by the carrier contained the exact same language required by the statute. However, as noted, the form also had an additional sentence appended to the end of the form that was not found in the mandated form. That sentence read, "By rejecting this coverage, I am also signing the waiver on P. 13 rejecting stacked limits of underinsured motorist coverage."
Prior to the Superior Court's decision in Jones, there were no appellate decisions addressing the effect of additional words on the validity of these types of automobile insurance rejection forms.
The court in Jones did draw guidance from another appellate decision on a similar issue involving the effect of missing words from the form. In its prior decision in the case of American Intern. Ins. Co. v. Vaxmonsky, the Superior Court had ruled that a UIM rejection form that was missing one word mandated by the statute was void for failing to specifically comply with the statutory mandates.
The Superior Court in Jones likewise held that, in deviating from the statutorily mandated language in the form, in this case by adding extra language, the UIM carrier failed to specifically comply with the statutory requirements regarding the UIM insurance rejection form and, as such, the form was void.
With this ruling, the court rejected the trial court's reliance upon the Pennsylvania Supreme Court's 2000 decision in Winslow-Quattlebaum v. Maryland Ins. Group, in which that court held that the UIM rejection form did not have to be on a separate page from the UIM stacking rejection form (but rejections of UM coverages had to be on different pages from rejections of UIM coverages).
Both the trial court judge and the dissenting Superior Court judge in Jones emphasized that, in reaching this ruling, the Winslow-Quattlebaum court wrote in dicta that "[t]here is nothing in the language of Section 1731 (c.1) to suggest that the required rejection statement for UM or UIM coverage must stand alone on a page without any other writing."
The majority in Jones distinguished the Winslow-Quattlebaum decision as focusing on the different issue of what different kinds of coverage rejections could be on the same page as opposed to the exact content of the wording of those rejection forms. The Jones court also noted that the form in the Winslow-Quattlebaum case, unlike the form in the case before it, did comply with the requirement that the form language be immediately followed by the mandated signature line.
In this regard, the Jones court faulted the form before it for also violating the "proximal relationship" between the mandated language and the required signature line following the form. In other words, the form in § 1731(c) did not have anything between the end of the language in the form and the signature line. Any deviation from that setup also failed to specifically comply with the statute in the eyes of the court.
The court emphasized that prior Pennsylvania decisions viewed the legislative intent behind the requirement that UM/UIM rejection forms "specifically comply" with the requirements of § 1731(c) to avoid any need by the courts of Pennsylvania to struggle, on a case-by-case basis, with the issue of whether particular UM/UIM rejection forms seem to substantially comply with the MVFRL. Accordingly, the Pennsylvania Superior Court in the Jones case strictly applied the law and found that, by adding an extra sentence to the form between the required language and the signature line, the Unitrin UIM rejection form did not, as required by § 1731 (c.1), "specifically comply" with the form found in § 1731(c).
In so ruling, the Pennsylvania Superior Court also refused to follow the prior decision of the U.S. District Court for the Middle District of Pennsylvania in the 2005 case of Unitrin Auto and Home Ins. Co. v. Heister, in which that court held that a UIM rejection form identical to the one at issue in this matter did specifically comply with § 1731(c). In addition to noting that federal court decisions were only of persuasive precedent, the Jones court disagreed with the analysis in Unitrin and also emphasized that Unitrin was handed down before the Vaxmonsky decision.
A Similar Result in Federal Court
Another recent case in which a UIM rejection form containing extra language — here only one extra word — was found to be invalid is the post-Vaxmonsky Middle District of Pennsylvania decision by Judge James M. Munley in the 2011 case of Grassetti v. Property and Casualty Insurance Co. of Hartford.
The carrier's form was found by the Grassetti court to deviate from the statutorily required language by only one word. Whereas the statutorily mandated form language made reference to "Uninsured Coverage," the carrier's form at issue in this matter added a word and referred to "Uninsured Motorists Coverage."
The court in Grassetti emphasized that 75 Pa.C.S. Section 1731(c)(1) provided that "[a]ny rejection form that does not specifically comply with this section is void." In so ruling, Munley also found Vaxmonsky persuasive on the issue of interpreting the specific compliance requirements of Section 1731(c)(1).
Take a Closer Look
The recent state and federal court decisions on the propriety of UM/UIM rejection forms should serve to compel both sides of the issue to break out the magnifying glasses to review the form language for strict compliance with the statutorily mandated language. The decisions issued to date confirm that, at least with respect to UM/UIM rejection forms, a deviation of the addition or omission of even a single word could serve to render the form void and thereby result in greater coverage for the injured party insured.
Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/.
UM/UIM Rejection Form Language Should Be Reviewed Carefully
ByDaniel E. Cummins
Pennsylvania Law Weekly
March 27, 2012
Under Pennsylvania's Motor Vehicle Responsibility Law, there are a number of across-the-board requirements that automobile insurance carriers must follow during an insured's application and purchase of an automobile insurance policy. Among the many requirements are mandated forms, containing specified language, that insurance companies must present to the applicant and secure signatures on during the insured's purchasing of the policy.
For example, the MVFRL mandates that a UIM carrier is required to provide UM and UIM coverage in an amount at least equal to the liability limits selected by its insured unless a valid rejection form, written in accordance with the specific form language mandated by 75 Pa.C.S. § 1731(c), was executed by the insured. Under the separate 75 Pa.C.S. § 1731(c.1), the Pennsylvania Legislature provided that "[a]ny rejection form that does not specifically comply with this section is void."
Litigation over the propriety of these forms typically arises later after the injured party insured has been in a motor vehicle accident and wishes to challenge whether he or she properly rejected or chose reduced UM or UIM coverages under his or her own policy.
A number of recent state and federal court decisions in Pennsylvania have confirmed that the courts of this commonwealth will engage in a strict constructionist approach when reviewing these challenges. From these decisions, it is readily apparent that the even the slightest deviation from the statutorily mandated language will result in the forms and, therefore, the elections of reduced UM or UIM coverages, rendered null and void as a matter of law.
Extra Language Renders Form Void
In its recent decision in the case of Jones v. Unitrin Auto and Home Insurance Co., the Pennsylvania Superior Court had an opportunity to address the propriety of an underinsured motorist's (UIM) benefits rejection form in a declaratory judgment action filed by an injured party insured. The novel question presented in this case of first impression was whether the inclusion of additional, or extra language, by the UIM carrier at the end of its UIM insurance rejection form that was over and above the statutorily mandated language failed to specifically comply with the MVFRL and was therefore void.
The court noted that precedent required it to construe the MVFRL "liberally" to give effect to the recognized goals of that law, one of which was to "afford the injured claimant the greatest possible coverage." The court also recognized that, in cases involving close questions, the courts were required to "interpret the intent of the legislature and the language of the insurance policies to favor coverage for the insured."
Turning to the facts before it, the court in Jones noted that the UIM rejection form utilized by the carrier contained the exact same language required by the statute. However, as noted, the form also had an additional sentence appended to the end of the form that was not found in the mandated form. That sentence read, "By rejecting this coverage, I am also signing the waiver on P. 13 rejecting stacked limits of underinsured motorist coverage."
Prior to the Superior Court's decision in Jones, there were no appellate decisions addressing the effect of additional words on the validity of these types of automobile insurance rejection forms.
The court in Jones did draw guidance from another appellate decision on a similar issue involving the effect of missing words from the form. In its prior decision in the case of American Intern. Ins. Co. v. Vaxmonsky, the Superior Court had ruled that a UIM rejection form that was missing one word mandated by the statute was void for failing to specifically comply with the statutory mandates.
The Superior Court in Jones likewise held that, in deviating from the statutorily mandated language in the form, in this case by adding extra language, the UIM carrier failed to specifically comply with the statutory requirements regarding the UIM insurance rejection form and, as such, the form was void.
With this ruling, the court rejected the trial court's reliance upon the Pennsylvania Supreme Court's 2000 decision in Winslow-Quattlebaum v. Maryland Ins. Group, in which that court held that the UIM rejection form did not have to be on a separate page from the UIM stacking rejection form (but rejections of UM coverages had to be on different pages from rejections of UIM coverages).
Both the trial court judge and the dissenting Superior Court judge in Jones emphasized that, in reaching this ruling, the Winslow-Quattlebaum court wrote in dicta that "[t]here is nothing in the language of Section 1731 (c.1) to suggest that the required rejection statement for UM or UIM coverage must stand alone on a page without any other writing."
The majority in Jones distinguished the Winslow-Quattlebaum decision as focusing on the different issue of what different kinds of coverage rejections could be on the same page as opposed to the exact content of the wording of those rejection forms. The Jones court also noted that the form in the Winslow-Quattlebaum case, unlike the form in the case before it, did comply with the requirement that the form language be immediately followed by the mandated signature line.
In this regard, the Jones court faulted the form before it for also violating the "proximal relationship" between the mandated language and the required signature line following the form. In other words, the form in § 1731(c) did not have anything between the end of the language in the form and the signature line. Any deviation from that setup also failed to specifically comply with the statute in the eyes of the court.
The court emphasized that prior Pennsylvania decisions viewed the legislative intent behind the requirement that UM/UIM rejection forms "specifically comply" with the requirements of § 1731(c) to avoid any need by the courts of Pennsylvania to struggle, on a case-by-case basis, with the issue of whether particular UM/UIM rejection forms seem to substantially comply with the MVFRL. Accordingly, the Pennsylvania Superior Court in the Jones case strictly applied the law and found that, by adding an extra sentence to the form between the required language and the signature line, the Unitrin UIM rejection form did not, as required by § 1731 (c.1), "specifically comply" with the form found in § 1731(c).
In so ruling, the Pennsylvania Superior Court also refused to follow the prior decision of the U.S. District Court for the Middle District of Pennsylvania in the 2005 case of Unitrin Auto and Home Ins. Co. v. Heister, in which that court held that a UIM rejection form identical to the one at issue in this matter did specifically comply with § 1731(c). In addition to noting that federal court decisions were only of persuasive precedent, the Jones court disagreed with the analysis in Unitrin and also emphasized that Unitrin was handed down before the Vaxmonsky decision.
A Similar Result in Federal Court
Another recent case in which a UIM rejection form containing extra language — here only one extra word — was found to be invalid is the post-Vaxmonsky Middle District of Pennsylvania decision by Judge James M. Munley in the 2011 case of Grassetti v. Property and Casualty Insurance Co. of Hartford.
The carrier's form was found by the Grassetti court to deviate from the statutorily required language by only one word. Whereas the statutorily mandated form language made reference to "Uninsured Coverage," the carrier's form at issue in this matter added a word and referred to "Uninsured Motorists Coverage."
The court in Grassetti emphasized that 75 Pa.C.S. Section 1731(c)(1) provided that "[a]ny rejection form that does not specifically comply with this section is void." In so ruling, Munley also found Vaxmonsky persuasive on the issue of interpreting the specific compliance requirements of Section 1731(c)(1).
Take a Closer Look
The recent state and federal court decisions on the propriety of UM/UIM rejection forms should serve to compel both sides of the issue to break out the magnifying glasses to review the form language for strict compliance with the statutorily mandated language. The decisions issued to date confirm that, at least with respect to UM/UIM rejection forms, a deviation of the addition or omission of even a single word could serve to render the form void and thereby result in greater coverage for the injured party insured.
Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Cognetti Comerford Cimini & Cummins. His civil litigation blog, "Tort Talk," may be viewed at http://www.torttalk.com/.
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