The Pennsylvania Defense Institute has announced that their annual North Regional CLE progam, which was set for August 22, 2013 at Mohegan Sun at Pocono Downs, has been postponed to December 4, 2013 to coincide with a Holiday Happy Hour on the same date.
The program is co-sponsored by the Northeast Pennsylvania Trial Lawyers Association.
The afternoon CLE program will be followed by the evening reception.
The program will feature new Pennsylvania Supreme Court Justice Correale F. Stevens, and a panel of local judges.
The cost for lawyers is $175 for the program and reception, and free for all others (insurance claim professionals, law clerks, paralegals, etc...).
For an agenda and registration click here (But be reminded that the new date is December 4, 2013).
You can also contact PDI Executive Director Dave Cole at coled01@padefense.org.for more information.
Friday, August 16, 2013
Tuesday, August 13, 2013
Another Decision in Favor of Severance of UIM and Bad Faith Post-Koken Claims in York County
In his recent decision in the case of Forry v. Erie Insurance Exchange, No. 2013-SU-1162-89 (C.P. York
Co. July 15, 2013
Linebaugh, P.J.), President Judge Stephen P. Linebaugh of the York County Court
of Common Pleas granted a Motion to Sever and Stay the bad faith claim filed
Defendant, Erie Insurance Exchange in a combined UIM/bad faith litigation.
The Court further ordered that all further pleadings, discovery, and trial of the bad faith claim was severed and stayed until after the Plaintiff’s claims for UIM benefits have been concluded by settlement or final verdict.
In support of its argument, the carrier argued that severance was required to advance the interest of judicial economy and to prevent prejudice to the Defendant. The carrier argued that, in terms of its prejudice argument, discovery in the bad faith claim may involve matters related to claims valuation, strategy, and analysis, none of which matters were germane or relevant to the underlying claim for UIM benefits.
The Plaintiffs countered by arguing that discovery of all claims presented, in the presentation of evidence of all claims at the same time, was economical, convenient, and would prevent undue delay.
The trial court noted that, while UIM claims are decided by a jury, bad faith claims inPennsylvania
In this matter, the Defendant wanted to ensure that the presentation of evidence of the bad faith claim would be separate from the presentation of the evidence of the UIM claim, as opposed to all of the evidence being presented during a jury trial with the trial judge disposing of the bad faith claim immediately following the jury reaching its verdict.
Judge Linebaugh noted that the fact alone that the bad faith claim must be decided by the judge while the UIM claim would be decided by the jury did not convince the court that severance and a stay was appropriate.
Rather, utilizing the discretion of the court and applying Pa. R.C.P. 213(b), the court felt that severance was appropriate. In his Opinion, Judge Linebaugh reviewed a number of decisions on the same issues from around the Commonwealth, including decisions by Judge Wettick out ofAllegheny
County
In the end, Judge Linebaugh ofYork County
Anyone wishing to review the detailed opinion of Judge
Linebaugh on this particular issue may contact me at dancummins@comcast.net. I send thanks to Attorney John A. Statler of the Lemoyne, Pennsylvania
The Court further ordered that all further pleadings, discovery, and trial of the bad faith claim was severed and stayed until after the Plaintiff’s claims for UIM benefits have been concluded by settlement or final verdict.
In support of its argument, the carrier argued that severance was required to advance the interest of judicial economy and to prevent prejudice to the Defendant. The carrier argued that, in terms of its prejudice argument, discovery in the bad faith claim may involve matters related to claims valuation, strategy, and analysis, none of which matters were germane or relevant to the underlying claim for UIM benefits.
The Plaintiffs countered by arguing that discovery of all claims presented, in the presentation of evidence of all claims at the same time, was economical, convenient, and would prevent undue delay.
The trial court noted that, while UIM claims are decided by a jury, bad faith claims in
In this matter, the Defendant wanted to ensure that the presentation of evidence of the bad faith claim would be separate from the presentation of the evidence of the UIM claim, as opposed to all of the evidence being presented during a jury trial with the trial judge disposing of the bad faith claim immediately following the jury reaching its verdict.
Judge Linebaugh noted that the fact alone that the bad faith claim must be decided by the judge while the UIM claim would be decided by the jury did not convince the court that severance and a stay was appropriate.
Rather, utilizing the discretion of the court and applying Pa. R.C.P. 213(b), the court felt that severance was appropriate. In his Opinion, Judge Linebaugh reviewed a number of decisions on the same issues from around the Commonwealth, including decisions by Judge Wettick out of
In the end, Judge Linebaugh of
Wednesday, August 7, 2013
BOOK REVIEW: An Excellent Resource for Litigators Preparing for Depositions
Here is a LINK to my book review that appeared in the recent edition of the Pennsylvania Lawyer magazine reviewing Attorney Scott Cooper's treatise on depositions entitled The A to Z of Civil Depositions in Pennsylvania.
The author of the treatise, Scott Cooper, Esquire from the Harrisburg, PA law firm of Schmidt Kramer, has written an excellent primer on depositions that may assist you in your future depositions. Information on how to purchase the book is included in the book review.
Monday, August 5, 2013
PDI/NEPATLA Northeastern Pennsylvania CLE - August 22, 2013 -- Mohegan Sun Casino
The Pennsylvania Defense Institute is proud to announce their annual regional CLE progam, August 22, 2013 at Mohegan Sun at Pocono Downs. The program is co-sponsored by the Northeast Pennsylvania Trial Lawyers Association. An afternoon CLE program is followed by an evening reception. The program features new Pennsylvania Supreme Court Justice Correale F. Stevens, and a panel of local judges. The cost for lawyers is $175 for the program and reception, and free for all others (insurance claim professionals, law clerks, paralegals, etc...). For an agenda and registration click here. (Or contact PDI Executive Director Dave Cole at coled01@padefense.org.).
Judge Williamson of Monroe County Grants Summary Judgment in Limited Tort Case
In his recent decision in the case of Bachman v. Lassell, PICS Case No. 13-0989 (C.P. Monroe Co. Apr. 15, 2013 , Williamson,
J.), Judge David J. Williamson of the Monroe County Court of Common Pleas
granted summary judgment to a Defendant in a limited tort case after finding
that reasonable minds on a jury would not differ on a conclusion that the
Plaintiff’s injuries did not result in a serious impairment of a bodily
function.
According to a report on the case, the court noted that, after the accident, Plaintiff did not immediately seek out medical attention. The day after the collision, the Plaintiff drove himself to the hospital and was treated and released under a diagnosis of a lumbar sprain and contusion.
Thereafter, anMRI
revealed a mild disc herniation and bulge.
The Plaintiff visited a doctor four times over a three month period and
attended six sessions of physical therapy.
The Plaintiff’s deposition testimony indicated that he alleged ongoing neck and back pain with headaches. The Plaintiff testified that he was restricted in his activities at times, but did not take any medication, and was not disabled. The evidence established that the Plaintiff was restricted by his doctors from lifting, pushing, or pulling more than 10 pounds for six weeks.
The Plaintiff worked as a tow truck driver and missed two and half months of work. He also never returned to an auto repair shop where he had worked periodically.
The court ruled that, despite the Plaintiff’s subjective complaints, there was no objective medical proof provided that the Plaintiff’s injuries amounted to a substantial impairment of a bodily function. Accordingly, the court granted partial summary judgment barring the Plaintiff from seeking non-economic damages for pain and suffering due to the Plaintiff’s failure to offer evidence of a substantial impairment of a bodily function.
Anyone desiring a copy of this decision, may contact the Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427, provide the above PICS Case No and pay a small fee.
Source: “Digest of Recent Opinions,”Pennsylvania July 9, 2013 ).
According to a report on the case, the court noted that, after the accident, Plaintiff did not immediately seek out medical attention. The day after the collision, the Plaintiff drove himself to the hospital and was treated and released under a diagnosis of a lumbar sprain and contusion.
Thereafter, an
The Plaintiff’s deposition testimony indicated that he alleged ongoing neck and back pain with headaches. The Plaintiff testified that he was restricted in his activities at times, but did not take any medication, and was not disabled. The evidence established that the Plaintiff was restricted by his doctors from lifting, pushing, or pulling more than 10 pounds for six weeks.
The Plaintiff worked as a tow truck driver and missed two and half months of work. He also never returned to an auto repair shop where he had worked periodically.
The court ruled that, despite the Plaintiff’s subjective complaints, there was no objective medical proof provided that the Plaintiff’s injuries amounted to a substantial impairment of a bodily function. Accordingly, the court granted partial summary judgment barring the Plaintiff from seeking non-economic damages for pain and suffering due to the Plaintiff’s failure to offer evidence of a substantial impairment of a bodily function.
Anyone desiring a copy of this decision, may contact the Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427, provide the above PICS Case No and pay a small fee.
Source: “Digest of Recent Opinions,”
Friday, August 2, 2013
ARTICLE: Accident-Prone Plaintiffs Face Quandary Over Multiple Trials
The below article of mine recently appeared in the July 23, 2013 edition of the Pennsylvania Law Weekly and is republished here with permission from American Law Media.
On occasion, a plaintiff comes along who has separate claims for personal
injuries arising out of different accidents that occurred close in time.
The dilemma for such a plaintiff becomes whether or not to attempt to pursue both claims under one complaint, or if the cases were filed under two separate complaints, whether to move to consolidate those matters into one trial.
Recent cases handed down confirm that while a plaintiff is not permitted to plead claims for two entirely separate accidents under a single complaint, once two separate complaints are filed by the plaintiff, the plaintiff may be able to consolidate those two actions for purposes of a single trial.
Joinder of Claims Not Permitted in Complaint
Under Pennsylvania Rule of Civil Procedure 2229(b), it is provided that a
"plaintiff may join as defendants persons against whom the plaintiff
asserts any right to relief jointly, severally, separately or in the
alternative, in respect of or arising out of the same transaction, occurrence
or series of transactions or occurrences if any common question of law or fact
affecting the liabilities of all such persons will arise in the action."
According to the case of Richner v. McCance, 13 A.2d 950 (Pa.Super. 2011), each element of this test must be met in order for separate claims to be stated under the caption of one complaint, i.e., joinder is permitted only if both (1) the lawsuits arose out of the same series of transactions or occurrences and (2) a common question of law or fact exists.
For example, in the Pennsylvania Superior Court case of Kalker v. Moyer, 921 A.2d 21 (Pa.Super. 2007), a plaintiff attempted to plead in one complaint claims arising out of separate motor vehicle accidents that occurred in different counties seven months apart. Turning to Pa.R.C.P. 2229(b), the Kalker court ruled that this joinder of claims was not permissible because the two accidents did not arise out of the same occurrence.
Such a joinder under a single complaint will not be allowed even where the plaintiff alleges an injury to the same body part from both accidents. In the Philadelphia case of Alpher v. Yellow Cab, 12 Pa.D.&C.3d 355 (C.P. Phila. 1979), a plaintiff attempted to plead claims in one complaint from two separate motor vehicle accidents that occurred 14 months apart on the basis that both accidents resulted in injuries to the same body part. The court in Alpher found that the two causes of action should not be joined because there was no common question of law or fact and because the claims did not arise out of the same transaction or series or occurrence.
As such, the law ofPennsylvania
Consolidation of Separate Claims for Trial
Judge R. Stanton Wettick Jr. of the Allegheny County Court of Common Pleas
recently addressed this very issue and allowed the consolidation of two
separately filed motor vehicle accident lawsuits brought by the same plaintiff
in the case of Jackson v. Drew, PICS CASE No. 13-1015, No.
GD-12-008737 (C.P. Allegheny April 24, 2013 Wettick, J.).
InJackson , the plaintiff was
involved in two separate car accidents in Allegheny County
Thereafter, the plaintiff filed a motion under Pa.R.C.P. 213 to consolidate the cases. The plaintiff asserted a concern that each defendant would try to blame the other for any of the injuries asserted.
Under Pa.R.C.P. 213(a), it is provided that "when actions involving a common question of law or fact are pending before the court, the court on its own motion or on motion of any party may order a joint hearing or trial of any or all of the matters in issue in the actions, may order all of the actions consolidated, and may make such orders concerning proceedings therein as may avoid unnecessary costs or delay."
InJackson
In his decision, Wettick distinguished the separate standards applicable to the permissive joinder of separate claims in a complaint under Pa.R.C.P. 2229 and to a motion for consolidation under Pa.R.C.P. 213(a). Whereas, the joinder Rule 2229(b) required both elements of the test — that is, actions arising out of the same occurrence and a common question of law or fact — the consolidation Rule 213(a) only mandated that one or the other elements of the test exist.
In the context of theJackson
Another example of a trial court opinion in which separate complaints were allowed to be consolidated for purposes of trial is Scoggins v. Hardy, 10 Pa.D.&C.4th 64 (C.P. York 1991). In Scoggins, the plaintiff allegedly sustained similar injuries as a result of two separate motor vehicle accidents that occurred several months apart.
The Scoggins court felt that the chances of the plaintiff receiving a fair trial would be enhanced by the consolidation, as one jury would hear the totality of the case and neither defendant would be able to point the finger at a missing defendant. The court also noted that with consolidation, the plaintiff would only need to call her medical experts to testify once and thereby avoid excessive fees. The court additionally noted that if the cases were not consolidated, there was the risk that the plaintiff might be able to collect twice for the same injuries. In granting the motion to consolidate, the Scoggins court pointed to the case of O'Meara v.Wilson
In the case of Hamilton v. Gallo, 334 A.2d 692 (Pa.Super. 1975), the Superior Court affirmed a trial court's consolidation of cases arising out of separate motor vehicle accidents that occurred several months apart. TheHamilton
While the decisions handed down to date all appear to favor the consolidation of separate complaints for separate accidents resulting in similar injuries, such consolidation is not automatic. Rather, under Rule 213, the courts retain broad discretion to consider whether or not to grant such requests to consolidate.
Moreover, as indicated in dicta in the Kalker decision referenced above, a consolidation request may be denied if the accidents arose in different counties, as venue issues may possibly serve to prevent the joinder of the two actions.
Damned If You Do, Damned If You Don't
Regardless of whether or not a decision is made to consolidate the claims,
plaintiffs pursuing a recovery for injuries arising out of two separate
accidents face challenges.
If separate trials occur, the plaintiff faces the greater risks attendant with the defendant blaming a missing defendant and another accident in the trial at hand. The same problem still exists in a consolidated trial but perhaps to a lesser degree, as the jury may be turned off by defendants casting blame at each other and refusing to accept responsibility for their own actions.
Plaintiffs claiming similar injuries in two separate accidents that occurred close in time may also have serious problems attempting to prove through expert testimony which accident caused which injury.
Where a plaintiff's medical expert fails to offer an unequivocal opinion, to a reasonable degree of medical certainty, as to which accident was responsible for which portion of the alleged injury, the plaintiff may be faced with a pretrial motion in limine seeking to preclude the testimony of the plaintiff's expert or a motion for nonsuit at the close of the plaintiff's case-in-chief at trial.
The courts ofPennsylvania have routinely
held that an expert's opinion must be unequivocal, as in Hamil v. Bashline,
392 A.2d 1280, 1285-1286 (Pa. Pa. 1969), and Collins v. Hand, 246
A.2d 398, 403 (Pa.
Thus, the defense argument will be that if the plaintiff's medical expert witness is unable to unequivocally conclude which injuries and symptoms are related to which accident as required by law, it logically and necessarily follows that a jury of laypeople will likewise be unable to render such a decision.
Burden of Proof
As was attempted in the case of Pennfield v. Meadow Valley Electric,
413 Pa. Super 187, 604 A.2d 1082, 1085 (1992), a plaintiff may attempt to shift
the burden of proof on the apportionment of the damages to the defendants under
the Restatement (Second) of Torts, Section 433B, which pertains to the
burden of proof of multiple defendants who have combined to cause an injury.
Similarly, in Smith v. Pulcinella, 656 A.2d 494 (Pa.Super. 1995), the court noted that since "most personal injuries are by their very nature incapable of division," a plaintiff should not be burdened with attempting to apportion the damages among multiple defendants. The court in Smith essentially treated the two separate defendants as joint tortfeasors in a case where the first defendant had rear-ended the plaintiff's vehicle and, shortly thereafter, the second defendant came along and rear-ended both vehicles as they were pulled off the side of the road.
However, defendants may counter with the argument that the rules pertaining to the apportionment of damages amongst multiple defendants only applies to joint tortfeasors, which generally cannot be so in the context of a matter two entirely distinct accidents separated by time.
Such was the finding of the court in a case involving two car accidents in Shamey v. State Farm Mutual Automobile Insurance, 331 A.2d 498 (Pa.Super. 1974). In Shamey, the plaintiffs had been driving up a hill when their vehicle became stuck in snow and ice. The plaintiff's vehicle was then struck in quick succession by two other vehicles.
As to the potential liability of the driver of the first vehicle that hit the plaintiff's vehicle, the Shamey court stated that it would be inappropriate to hold him liable for damages that were not the result of his negligence. Rather, where there were two separate collisions by two allegedly negligent drivers, each could only be found to be responsible for the injuries caused by his negligence.
In McGuire v. Hamper Coal Mining, 49 A.2d 396, 397 (Pa. 1946), the plaintiff suffered an injury to the same spot on his head as a result of two separate accidents two weeks apart.
On the apportionment of damages, the Supreme Court in McGuire reasoned that, since each defendant was only responsible for his own negligence, "it was incumbent upon plaintiff to individuate the injuries and damages" sustained from each accident. In this regard, the court found that the plaintiff was required to offer proof on the damages issues "not with absolute exactitude, but at least with reasonable approximation" so as to prevent impermissible conjecture on the part of the jury in their deliberations.
Ultimately, the Supreme Court in McGuire stated that "it might seem at first blush as though an injustice is being visited upon plaintiff in denying him a recovery from defendant of damages to which he might otherwise be entitled merely because he was unlucky enough to have a second accident and cannot now apportion his injuries between two occurrences. On more mature reflection, however, it should be apparent that it would be at least equally unjust to impose upon defendant a liability for damages which it was not shown to have caused."
Thus, the plaintiff who has the misfortune of having been injured in multiple accidents will have many issues to consider in addressing the quandary of whether to seek recovery at one trial or two.
Daniel E. Cummins is a partner and civil litigator with theScranton
Accident-Prone Plaintiffs Face Quandary Over Multiple Trials
ByThe dilemma for such a plaintiff becomes whether or not to attempt to pursue both claims under one complaint, or if the cases were filed under two separate complaints, whether to move to consolidate those matters into one trial.
Recent cases handed down confirm that while a plaintiff is not permitted to plead claims for two entirely separate accidents under a single complaint, once two separate complaints are filed by the plaintiff, the plaintiff may be able to consolidate those two actions for purposes of a single trial.
Joinder of Claims Not Permitted in Complaint
Under Pennsylvania Rule of Civil Procedure 2229(b), it is provided that a
"plaintiff may join as defendants persons against whom the plaintiff
asserts any right to relief jointly, severally, separately or in the
alternative, in respect of or arising out of the same transaction, occurrence
or series of transactions or occurrences if any common question of law or fact
affecting the liabilities of all such persons will arise in the action."According to the case of Richner v. McCance, 13 A.2d 950 (Pa.Super. 2011), each element of this test must be met in order for separate claims to be stated under the caption of one complaint, i.e., joinder is permitted only if both (1) the lawsuits arose out of the same series of transactions or occurrences and (2) a common question of law or fact exists.
For example, in the Pennsylvania Superior Court case of Kalker v. Moyer, 921 A.2d 21 (Pa.Super. 2007), a plaintiff attempted to plead in one complaint claims arising out of separate motor vehicle accidents that occurred in different counties seven months apart. Turning to Pa.R.C.P. 2229(b), the Kalker court ruled that this joinder of claims was not permissible because the two accidents did not arise out of the same occurrence.
Such a joinder under a single complaint will not be allowed even where the plaintiff alleges an injury to the same body part from both accidents. In the Philadelphia case of Alpher v. Yellow Cab, 12 Pa.D.&C.3d 355 (C.P. Phila. 1979), a plaintiff attempted to plead claims in one complaint from two separate motor vehicle accidents that occurred 14 months apart on the basis that both accidents resulted in injuries to the same body part. The court in Alpher found that the two causes of action should not be joined because there was no common question of law or fact and because the claims did not arise out of the same transaction or series or occurrence.
As such, the law of
Consolidation of Separate Claims for Trial
Judge R. Stanton Wettick Jr. of the Allegheny County Court of Common Pleas
recently addressed this very issue and allowed the consolidation of two
separately filed motor vehicle accident lawsuits brought by the same plaintiff
in the case of Jackson v. Drew, PICS CASE No. 13-1015, No.
GD-12-008737 (C.P. Allegheny April 24, 2013 Wettick, J.).In
Thereafter, the plaintiff filed a motion under Pa.R.C.P. 213 to consolidate the cases. The plaintiff asserted a concern that each defendant would try to blame the other for any of the injuries asserted.
Under Pa.R.C.P. 213(a), it is provided that "when actions involving a common question of law or fact are pending before the court, the court on its own motion or on motion of any party may order a joint hearing or trial of any or all of the matters in issue in the actions, may order all of the actions consolidated, and may make such orders concerning proceedings therein as may avoid unnecessary costs or delay."
In
In his decision, Wettick distinguished the separate standards applicable to the permissive joinder of separate claims in a complaint under Pa.R.C.P. 2229 and to a motion for consolidation under Pa.R.C.P. 213(a). Whereas, the joinder Rule 2229(b) required both elements of the test — that is, actions arising out of the same occurrence and a common question of law or fact — the consolidation Rule 213(a) only mandated that one or the other elements of the test exist.
In the context of the
Another example of a trial court opinion in which separate complaints were allowed to be consolidated for purposes of trial is Scoggins v. Hardy, 10 Pa.D.&C.4th 64 (C.P. York 1991). In Scoggins, the plaintiff allegedly sustained similar injuries as a result of two separate motor vehicle accidents that occurred several months apart.
The Scoggins court felt that the chances of the plaintiff receiving a fair trial would be enhanced by the consolidation, as one jury would hear the totality of the case and neither defendant would be able to point the finger at a missing defendant. The court also noted that with consolidation, the plaintiff would only need to call her medical experts to testify once and thereby avoid excessive fees. The court additionally noted that if the cases were not consolidated, there was the risk that the plaintiff might be able to collect twice for the same injuries. In granting the motion to consolidate, the Scoggins court pointed to the case of O'Meara v.
In the case of Hamilton v. Gallo, 334 A.2d 692 (Pa.Super. 1975), the Superior Court affirmed a trial court's consolidation of cases arising out of separate motor vehicle accidents that occurred several months apart. The
While the decisions handed down to date all appear to favor the consolidation of separate complaints for separate accidents resulting in similar injuries, such consolidation is not automatic. Rather, under Rule 213, the courts retain broad discretion to consider whether or not to grant such requests to consolidate.
Moreover, as indicated in dicta in the Kalker decision referenced above, a consolidation request may be denied if the accidents arose in different counties, as venue issues may possibly serve to prevent the joinder of the two actions.
Damned If You Do, Damned If You Don't
Regardless of whether or not a decision is made to consolidate the claims,
plaintiffs pursuing a recovery for injuries arising out of two separate
accidents face challenges.If separate trials occur, the plaintiff faces the greater risks attendant with the defendant blaming a missing defendant and another accident in the trial at hand. The same problem still exists in a consolidated trial but perhaps to a lesser degree, as the jury may be turned off by defendants casting blame at each other and refusing to accept responsibility for their own actions.
Plaintiffs claiming similar injuries in two separate accidents that occurred close in time may also have serious problems attempting to prove through expert testimony which accident caused which injury.
Where a plaintiff's medical expert fails to offer an unequivocal opinion, to a reasonable degree of medical certainty, as to which accident was responsible for which portion of the alleged injury, the plaintiff may be faced with a pretrial motion in limine seeking to preclude the testimony of the plaintiff's expert or a motion for nonsuit at the close of the plaintiff's case-in-chief at trial.
The courts of
Thus, the defense argument will be that if the plaintiff's medical expert witness is unable to unequivocally conclude which injuries and symptoms are related to which accident as required by law, it logically and necessarily follows that a jury of laypeople will likewise be unable to render such a decision.
Burden of Proof
As was attempted in the case of Pennfield v. Meadow Valley Electric,
413 Pa. Super 187, 604 A.2d 1082, 1085 (1992), a plaintiff may attempt to shift
the burden of proof on the apportionment of the damages to the defendants under
the Restatement (Second) of Torts, Section 433B, which pertains to the
burden of proof of multiple defendants who have combined to cause an injury.Similarly, in Smith v. Pulcinella, 656 A.2d 494 (Pa.Super. 1995), the court noted that since "most personal injuries are by their very nature incapable of division," a plaintiff should not be burdened with attempting to apportion the damages among multiple defendants. The court in Smith essentially treated the two separate defendants as joint tortfeasors in a case where the first defendant had rear-ended the plaintiff's vehicle and, shortly thereafter, the second defendant came along and rear-ended both vehicles as they were pulled off the side of the road.
However, defendants may counter with the argument that the rules pertaining to the apportionment of damages amongst multiple defendants only applies to joint tortfeasors, which generally cannot be so in the context of a matter two entirely distinct accidents separated by time.
Such was the finding of the court in a case involving two car accidents in Shamey v. State Farm Mutual Automobile Insurance, 331 A.2d 498 (Pa.Super. 1974). In Shamey, the plaintiffs had been driving up a hill when their vehicle became stuck in snow and ice. The plaintiff's vehicle was then struck in quick succession by two other vehicles.
As to the potential liability of the driver of the first vehicle that hit the plaintiff's vehicle, the Shamey court stated that it would be inappropriate to hold him liable for damages that were not the result of his negligence. Rather, where there were two separate collisions by two allegedly negligent drivers, each could only be found to be responsible for the injuries caused by his negligence.
In McGuire v. Hamper Coal Mining, 49 A.2d 396, 397 (Pa. 1946), the plaintiff suffered an injury to the same spot on his head as a result of two separate accidents two weeks apart.
On the apportionment of damages, the Supreme Court in McGuire reasoned that, since each defendant was only responsible for his own negligence, "it was incumbent upon plaintiff to individuate the injuries and damages" sustained from each accident. In this regard, the court found that the plaintiff was required to offer proof on the damages issues "not with absolute exactitude, but at least with reasonable approximation" so as to prevent impermissible conjecture on the part of the jury in their deliberations.
Ultimately, the Supreme Court in McGuire stated that "it might seem at first blush as though an injustice is being visited upon plaintiff in denying him a recovery from defendant of damages to which he might otherwise be entitled merely because he was unlucky enough to have a second accident and cannot now apportion his injuries between two occurrences. On more mature reflection, however, it should be apparent that it would be at least equally unjust to impose upon defendant a liability for damages which it was not shown to have caused."
Thus, the plaintiff who has the misfortune of having been injured in multiple accidents will have many issues to consider in addressing the quandary of whether to seek recovery at one trial or two.
Daniel E. Cummins is a partner and civil litigator with the
Thursday, August 1, 2013
Bad Faith Decision Out of Blair County
Senior Judge Charles Brown, Jr. recently issued a bad faith decision in the Blair County case of Rhodes v. USAA Cas. Ins. Co., No. 2004 GN 2279 (C.P. Blair Co. July 18, 2013 Brown), that had gone up and down the appellate ladder before this decision.
Central issues in the case involved whether the time the carrier took to evaluate and settle the claim was unreasonable and whether the carrier had a reasonable basis for defending the claim.
After conducting an extensive review of the facts presented as applied against the current status of bad faith law, the court found that the carrier had acted reasonably. In so ruling, the court noted that there were times that the carrier was without the information necessary to complete its full evaluation. The court also noted that "[d]elays in this case were caused by the reasonable pace of the litigation."
As such, the court entered a verdict in favor of the carrier in this non-jury case.
Anyone desiring a copy of this case to review may click this LINK.
I send thanks to Attorney Patricia Monahan of the Pittsburgh office of Marshall, Dennehey, Warner, Coleman & Goggin, as well as David Cole, the Executive Director of the Pennsylvania Defense Institute, for providing me with a copy of this case.
Central issues in the case involved whether the time the carrier took to evaluate and settle the claim was unreasonable and whether the carrier had a reasonable basis for defending the claim.
After conducting an extensive review of the facts presented as applied against the current status of bad faith law, the court found that the carrier had acted reasonably. In so ruling, the court noted that there were times that the carrier was without the information necessary to complete its full evaluation. The court also noted that "[d]elays in this case were caused by the reasonable pace of the litigation."
As such, the court entered a verdict in favor of the carrier in this non-jury case.
Anyone desiring a copy of this case to review may click this LINK.
I send thanks to Attorney Patricia Monahan of the Pittsburgh office of Marshall, Dennehey, Warner, Coleman & Goggin, as well as David Cole, the Executive Director of the Pennsylvania Defense Institute, for providing me with a copy of this case.
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