CLE Booklet Created from Tort Talk Posts Available Online

Here is a LINK to a 218 page booklet I created over the Summer for a CLE program. 

Although the booklet is entitled "Auto Law Update," it really provides a general Civil Litigation Update as it covers other areas as well.  The booklet was derived primarily by cutting and pasting blog posts from Tort Talk over the past year.

Also included in the booklet are some sample Post-Koken jury instructions utilized by courts from around the Commonwealth.

The Post-Koken Scorecard and the Facebook Discovery Scorecard from the Tort Talk Blog are also included.

Please enjoy and Thanks for reading Tort Talk.

Liability of Landlord Out-Of-Possession In Premises Liability Matters

In his recent decision in the case of Mills v. Gubbio’s, LLC., No. 2013-CV-2940 (C.P. Lacka. Co. Oct. 2, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granted a Defendant landlord’s Motion for Summary Judgment in a slip and fall case.  

This personal injury action arose out of an alleged slip and fall on an icy sidewalk.

According to the Opinion, the property owner/landlord out of possession filed a Motion for Summary Judgment on the grounds that he did not have a duty to maintain the sidewalk or remove ice and snow from the sidewalk.

The Opinion provides a detailed summary of the current status of the law pertaining to the liability of a landlord-out-of possession in premises liability matters.

The Opinion confirmed that it was undisputed between the parties that the out-of-possession landlord leased the entire property to two tenants. It was also confirmed in the Opinion that the terms of the written Release required that the first floor commercial tenant keep sidewalks free from snow and ice. Both tenants were noted to have also confirmed in discovery that the first floor commercial tenant was solely responsible for the removal of snow and ice from the sidewalk and that the commercial tenant had hired a third party to shovel and salt the sidewalks.

Based on these facts, the Court ruled that, since it was undisputed that the out-of-possession landlord did not retain control over the sidewalks or the common areas and given that the written Lease imposed exclusive responsibility upon the commercial tenant for the removal of snow and ice from the sidewalk areas, the Court found that the out-of-possession landlord did not owe a duty of care to the Plaintiff as a matter of law. Accordingly, the landlord’s Motion for Summary Judgment was granted.

Since the court granted summary judgment on the above issue, the Hills and Ridges Doctrine argument raised was not addressed.

 Anyone wishing to review this Opinion by Judge Nealon may click this LINK.

Post-Koken and Facebook Discovery Scorecards Updated on Tort Talk

Both the Tort Talk Post-Koken Scorecard and the Tort Talk Facebook Discovery Scorecard have been updated with recent cases.  To view, click on the Scorecard titles in the previous sentence.

The Post-Koken Scorecard and the Facebook Discovery Scorecard are also always freely accessible by going to www.TortTalk.com and scrolling down the right hand column of the blog and clicking on the dates noted under "Post-Koken Scorecard" and "Facebook Discovery Scorecard."

Please forward to my attention a copy of any Orders or Opinions you may generate on Post-Koken or Facebook Discovery issues in order that these Scorecards may be continually updated for the benefit of all.

Thank you for reading Tort Talk.

Judge Williamson Reverses Course and Chooses to Stay Bad Faith Discovery in Post-Koken Cases

In follow-up to yesterday's post on Judge Williamson's Monroe County Post-Koken decision in Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. March 18, 2015, Williamson, J.), in which the court severed UIM and Bad Faith Claims but denied a request for a stay of bad faith discovery, it has been brought to my attention that Judge Williamson issued a discovery Order more recently in the same case on May 8, 2015 in which he reversed, in part, his prior decision.

Judge David J. Williamson
Monroe County

In his more recent May 8, 2015 decision, Judge Williamson noted that, in the previous March 18, 2015 decision he had granted the Plaintiffs' Motion to Compel but reserved ruling on the Plaintiffs' request for the production of the Erie Insurance claims manual pending an in camera review of privileged and confidential information.

The court's more recent May 8, 2015 outlines the court's review of the claims manual.

In his Opinion, Judge Williamson stated that "[t]he Erie Claims Manual is inherently a privileged and confidential document."  Op. at p. 1.

He also noted that while some sections of the Manual may be relevant to the Bad Faith portion of the claim, "[n]one of the sections appear relevant in the breach of contract claims."  Op. at p. 2.

Judge Williamson noted that, while some of the parts of the Claims Manual were relevant to the Bad Faith claims presented, the court was declining to order the release of those portions of the manual while the UIM claim was still pending.

In so ruling, Judge Williamson stated, "We have reexamined our opinion concerning the denial of the stay requested by the Defendant of the bad faith claim, while the breach of contract claim is pending.  Upon further reflection, we determine that a stay of the bad faith claim should be entered until such time as the breach of contract action is concluded."  Op. at p. 2.

Judge Williamson supported his reversal of his prior decision by noting that evidence of the handling of claims is not relevant to the merit of the actual injury claim and that the release of the Claims Manual information would be prejudicial.  The court also noted that it would be improper to allow for the release of the confidential Claims Manual information where it was certainly possible that the Bad Faith claims would never come to fruition pending the results of the breach of contract claim.

The court also supported its decision by noting that the release of confidential and proprietary information would expose the carrier's thoughts and analysis  prior to the breach of contract claim being fully litigated and could be improperly utilized as a bargaining chip in settlement negotiation.

Moreover, the court noted that allowing this discovery would likely lead to more Bad Faith discovery requests, more motions to compel, more motions for protective orders, and more court hearings, all of which would serve to unnecessarily delay the resolution or trial of the breach of contract claims.

Judge Williamson noted that he felt "confident that without this ruling [to stay the bad faith discovery], this matter will continue in the discovery stage with a war of attrition through motions, rather than proceed to court."  This, the court noted, would "be a burden on the court's resources, and will serve to prejudice both litigants."  Op. at p. 3

Accordingly, Judge Williamson entered an Order vacating his prior decision and staying all discovery and action in the Bad Faith claim pending the resolution of the Breach of Contract claim.

Anyone wishing to review this Opinion by Judge Williamson, may click this LINK.

I send thanks to Attorney Domenic Sbrocchi of the Bethlehem, PA law firm of King, Spry, Herman, Freund, & Faul for bringing this case to my attention.  I also send thanks to Attorney Pete Speaker of the Harrisburg, PA law firm of Thomas, Thomas & Hafer for alerting me to this decision as well.



NOTE:  Judge Williamson issued another Opinion along the same lines more recently on October 1, 2015 in the case of Brands v. Erie Ins. Exchange, No. 2604-CIVIL-2015 (C.P. Monroe Oct. 1, 2015 Willamson, J.).  Look for a summary of, and a Link to, that decision here on Tort Talk next week.

Judge Williamson of Monroe County Again Rules in Favor of Severing Bad Faith Claim in Post-Koken Action, But Against a Stay of Bad Faith Discovery

Below is a summary of another Post-Koken decision discovered out of Monroe County by Judge David J. Williamson.

In its decision, from back in the Spring, in the case of Hakim v. Erie Insurance Exchange, No. 6241-Civil-2013 (C.P. Monroe Co. March 18, 2015, Williamson, J.), Judge David J. Williamson granted the Defendant carrier’s Motion to Sever the bad faith and extra-contractual claims from the UIM claims, but denied the UIM carrier’s Motion to Stay Bad Faith Discovery.

In coming to his decision in this matter, which is consistent with other decisions out of Monroe County, Judge Williamson relied on Pa. R.C.P. 213(b), which provides the Court with discretion to sever cases.  

Referring to its own previous decision in the case of Orsulak v. Penn National, Judge Williamson again noted that “Evidence put forth in the bad faith claim for the court to consider would likely confuse the jury and its role in the proceedings.   Certain information disclosed for purposes of the bad faith claim could also prejudice the jury against [the Defendant].”   Citing Orsulak v. Penn National, No. 4255-CV-2011 (C.P. Monroe Co. Jan. 14, 2013, Williamson, J.). 

In this case of Hakim, Judge Williamson again ruled that he found that the UIM carrier Defendant in this case “would be prejudiced by joining the bad faith claims with the contractual claims during trial.  There may be information that is relevant to the bad faith claim that is not relevant to the contractual claims which would prejudice Defendant in the eyes of the jury.   There is no indication at this time that the need for judicial economy outweighs the prejudice.”   See Hakim at p. 11.  

As such, relying in part on his own prior decision in Orsulak, Judge Williamson granted the Motion to Sever the Bad Faith Claim.

However, as noted, Judge Williamson, relying upon the case of Gunn v. Automobile Insurance Company of Hartford, 971 A.2d 505 (Pa. Super. 2009), denied the UIM carrier’s Motion to Stay Discovery.   Judge Williamson also came to the same decision in his own previous Opinion in the case of Orsulak v. Penn National.   The Court ruled in this fashion because “staying all discovery with respect to the bad faith claim would cause unnecessary delay and there were better measures the Court could take to avoid prejudice during the discovery process once prejudice was shown.”  See Hakim at p. 12 [other citations omitted].  

Anyone wishing to review a copy of Judge Williamson's decision in Hakim may click this LINK.

Recent Post-Koken Discovery Decisions Out of Lackawanna County

Updating on Post-Koken discovery matters, it is noted that there were no two recent Orders out of the Lackawanna County Court of Common Pleas in which the depositions of claims representatives were compelled by Court Order issued by a Special Trial Master.

While these decisions are not precedential, they do provide insight on how Special Trial Master Burke will handle such issues. 

The cases are Culkin v. Sciandra and Liberty Mutual, and Safeco, No. 2559-Civil-2014 (C.P. Lacka. Co. May 4, 2015 Burke, Special Trial Master); and

Carlson v. Scarantino and First Liberty Insurance, No. 2014-Civil-7786 (C.P. Lacka. Co. Aug. 27, 2015 Burke, Special Trial Master).

In the Carlson decision, the Special Trial Master for discovery motions court in Lackawanna County ruled that the scope of the deposition of the claims representative would be limited to questions pertaining to the claims representative’s objective knowledge of the fact pertaining to the accident and the Plaintiff’s alleged injuries. The Plaintiff was precluded from deposing the claims representative as to her mental impressions, conclusions, or opinions regarding the value or merit of the claims or defenses, or regarding strategy or tactics. The Plaintiff is also precluded from deposing the claims adjuster regarding the process and procedures by which the insurance company handled and is handling the Plaintiff’s UIM claim as well as other claims.

No such specific restrictions are seen in the Order entered in the Culkin case.

Anyone wishing to review a copy of these Orders, without any Opinions, may contact me at dancummins@comcast.net.
 

I send thanks to Attorney Neil O’Donnell of the O’Donnell Law Offices in Kingston, Pennsylvania for providing me with a copy of these Court Orders.

Motion For Protective Order Granted to Protect Medically Infirm Deponent From Deposition

In his recent decision in the case of Cook v. Moses Taylor Hospital, No. 13-CV-1140 (C.P. Lacka. Co., Sept. 15, 2015 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed a defense motion in a medical malpractice claim seeking to prohibit a deposition of a nurse on medical incapacity grounds and/or due to the neurological incapacity of the witness to complete a deposition as supported by medical documentation provided to the court.  

While the Court found that the information sought from the nurse witness met the standards for relevancy for discovery, the Court also noted that significant concerns were raised regarding the competency of the nurse to testify by deposition given the medical information provided to the Court regarding the nurse’s medical issues. 



Judge Terrence R. Nealon
Lackawanna County

The Court addressed the defense Motion for Protective Order under Rule 4012 and found that there were no reported Pennsylvania decisions on the point.  

After referring to some federal court decisions from within and without Pennsylvania, Judge Nealon exercised the broad discretion vested in him under Rule 4012 and ordered that the nurse would be required to submit to inquiries by written Interrogatories as opposed to a deposition.  
 
Judge Nealon indicated that he ruled in this fashion to prevent the exposure of a neurologically infirm and cognitively impaired deponent to the stress and anxiety of an uncertain deposition while still considering the right of the Plaintiff to exhaust her ability to obtain discoverable information to alternative means.  

 

Anyone wishing to review this decision, may click this LINK.