"Snap" Removal of Case to Federal Court Approved by Third Circuit Court of Appeals

In what some are calling the first federal appellate court decision on the issue, the Third Circuit Court of Appeals approved the practice of "snap" removals, the process by which Defendants remove cases filed in state court to federal court even before the Defendant has been served.  

The decision came down in the case of Encompass Insurance v. Stone Mansion  Restaurant, No. 17-CV-1749 (3d Cir. Aug. 22, 2018) (Op. by Chagares, J.).  

According to an article entitled “‘Snap’ Removal Given Green Light by Third Circuit” by Max Mitchell in the August 30, 2018 edition of the Pennsylvania Law Weekly, snap removals most often occur in cases where there are no multiple Defendants.   Such snap removals occur when Defendants get wind of a lawsuit that has been filed before they have been fully served by the Plaintiffs. This is typically accomplished by the Defendant by monitoring the electronic dockets.   Once they learn of the suit, Defendants then seek to remove the case to federal court arguing that, since they have not yet been “properly served,” they are not yet barred from removing the case.   

 

As noted, this procedural strategy has been approved by the Third Circuit in this decision, which can be viewed online HERE.

 

Judge Gartley of Luzerne County County Grants Severance of Post-Koken Bad Faith Claim But Denies Stay of Discovery Efforts

Hurricane Koken continues to swirl through Pennsylvania.

In her recent Order in the case of McLaughlin v. State Auto Property and Cas. Ins. Co., No. 2017-CV-08471 (Aug. 29, 2018 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas granted in part and denied in part the UIM carrier’s Motion to Sever and Stay the Plaintiffs’ statutory and common law bad faith claims in a Post-Koken litigation.

The Court agreed to sever the bad faith claims from the breach of contract claims for trial purposes but denied the motion for a stay of any bad faith discovery.  

The Order additionally noted that any bad faith discovery disputes should be submitted to the court for a determination as to whether the information at issue is protected from discovery or warrants a redaction until the breach of contract/UIM claims have been submitted to the jury for final disposition.  

The court further ordered that the UIM carrier shall deliver any and all unredacted or withheld copies of bad faith discovery when the case is sent to the jury for deliberations on the breach of contract/UIM case.  

The court additionally noted that, upon receipt and review of the bad faith discovery, the Plaintiff may request an immediate non-jury trial on the bad faith claim or seek a continuance to conduct pre-trial preparation of that bad faith claim.   

Commentary:

 

The court’s Order in this regard follows, without citation, the decision of Judge Terrence R. Nealon in the Lackawanna County Court of Common Pleas case of Fertig v. Kelley , which followed, in part, decisions by Judge R. Stanton Wettick of the Allegheny Court of Common Pleas in the cases of Gunn v. The Automobile Ins. Co. of Hartford and Wutz v. Smith.  

It is noted, however, that other county courts have ruled to instead sever and/or stay bad faith claims from the UIM claims such that there remains a split of authority among the county trial courts of Pennsylvania without any appellate guidance to date. 


Anyone wishing to review this Order by Judge Gartley may click this LINK.

Pennsylvania Supreme Court Provides Guidance on Preserving Appellate Issues on Jury Instructions

In the case of Jones v. Ott, No. 12 WAP 2017 (Pa. Aug. 21, 2018) (Op. by Wecht, J.), the Pennsylvania Supreme Court clarified the steps necessary to preserve for appeal any objections with regards to the trial court’s instructions to the jury at trial.  

This case arose out of a motor vehicle accident negligence case.

Prior to trial, the Plaintiff filed proposed Points for Charge with the court. Within those proposed Points for Charge were three (3) proposed instructions related to the Doctrine of Negligence Per Se.  

After trial commenced, but before the case was sent to the jury, the court held a charge conference with the attorneys involved.   Thereafter, the trial court provided its instructions to the court and did not include any instructions concerning negligence per se.  

In the courtroom, after charging the jurors, the trial court judge asked counsel whether there was anything with respect to the charge that either party wanted to put on the record.   The Plaintiff’s lawyer responded “I have no issues with the charge, Your Honor.”  

The jury returned a defense verdict.

The Plaintiff filed post-trial motions asserting, in part, that the trial court erred in failing to instruct the jury as to negligence per se.   The defense asserted that the Plaintiff had waived that issue by failing to lodge a timely objection at trial. The Plaintiff responded that the issue had been preserved by filing the written Proposed Points for Charge with the court and by raising the issue in a pre-trial motion.

The trial court denied the Plaintiff’s post-trial motion and the case went up the appellate ladder, eventually reaching this decision by the Pennsylvania Supreme Court.  

The Pennsylvania Supreme Court had granted review of the case, in part, in order to clarify the steps one may take to preserve a challenge to the trial court’s jury instructions in accordance with Pennsylvania Rules of Civil Procedure  227.1.  

Ultimately, the Pennsylvania Supreme Court ruled that, since the Plaintiff failed to lodge a contemporaneous objection to the trial court’s instruction at trial or to state any objection when invited to do so by the court at the conclusion of the instructions, the Plaintiff’s challenge to the instructions was deemed to have been waived.  Accordingly, the lower court decisions were affirmed. 

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

HERE is the Concurring Opinion by Chief Justice Saylor.

HERE is the Dissenting Opinion by Justice Dougherty.  

HERE is the Dissenting Opinion by Justice Mundy.

Commentary: The lesson here is to, at a minimum, raise to file Proposed Points for Charge with the instructions you desire prior to the start of the trial, make your voice heard on instructions desired at the Charge Conference, and place your position on the record at the conclusion of the jury instructions when the court invites you to do so.

Berks County Court Addresses UIM Credits for Non-Auto Liability Policies

In the case of Adams v. GEICO, No. 15 - 18880 (C.P. Berks Co. Aug. 7, 2017 Fudeman, J.), the Berks County Court of Common Pleas addressed issues pertaining to offsets and credits due in a UIM matter.

By way of background, the Plaintiff was working as part of a construction crew on a road project when a motorist ran over his foot.

The Plaintiff sued the driver and Traffic Control Services/Flagger Force on his third party claims, and GEICO on his UIM claim.

The Plaintiff settled his claim against the tortfeasor driver for her $100,000 liability limits.  He settled his claim against Traffic Control Services/Flagger Force for $75,000 of that company's $2 million dollar limits.

The UIM carrier asserted that any payout of UIM limits should be offset by the amount of $2.1 million dollars, the combined amount of liability coverage possessed by both tortfeasors.  The carrier asserted that, assuming that the Plaintiff's damages were below that credit, the carrier should be entitled to summary judgment.

The Plaintiff asserted that the carrier was not entitled to any set-off relative to the payment made by the flagging company's liability carrier.

The court initially rejected the Plaintiff's contention that, under the MVFRL, only motor vehicle liability policies should be considered in calculating to credits due to a UIM carrier.  In that regard, the court pointed to the case of D'Adamo v. Erie Ins., 4 A.3d 1090, 1098 (Pa. Super. 2010), in which that court held that an umbrella policy could be factored into the credit due even though it was not an auto liability policy.

The court also rejected the Plaintiff's contention that set-offs in the UIM context are void as against public policy.

Under these rulings the court held that the UIM carrier was entitled to a credit of the $100,000 paid by the driver and the $75,000 paid by the flagger company's carrier so as to prevent any double recovery by the Plaintiff for the same damages.

Under the particular UIM policy language at issue in this case, the court went on to reject the carrier's assertion that it was entitled to a credit of the flagging company's $2 million dollars in liability limits.  The applicable clause in the GEICO UIM policy at issue in this case provided that the UIM payments paid under the policy would be "reduced by all amounts...paid by or for all persons or organizations liable for the injury."

The court noted that the policy did not contain the typical exhaustion clause which typically enables a UIM carrier to claim a credit for the liability limits of all tortfeasors involved.

As such, the court ruled in this case that the UIM carrier was only entitled to a credit or offset in the amount of the sum of the payments by the tortfeasors, not the amount of their liability limits contained in their respective policies.

In the end, the carrier's motion for summary judgment was denied under the above analysis and given that the Plaintiff's entitlement to UIM benefits had not yet been determined.

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

I send thanks to Attorney Joseph Hudock of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

Summary Judgment Granted in Stepping Off a Curb Trip and Fall Case

In the case of Slappy-Sutton v. Speedway, LLC, No. 16-CV-4765 (E.D. Pa. June 22, 2018 DuBois, J.), the court granted a Defendant’s Motion for Summary Judgment in a trip and fall case involving a curb after the court found that the curb presented an open and obvious condition.  

The Plaintiff tripped and fell after misjudging the step down from a curb while exiting a Convenient Store and attempting to go back to his car in the parking lot after refueling his vehicle.   The Plaintiff alleged a failure to make the curb a different color in order for patrons to distinguish the curb from a nearby cement strip.  

After reviewing pictures and expert testimonies provided by the parties, the court noted that local township code provisions did not require a landowner to distinguish between the color of a curb and the pavement below.  The court found that the curb was not a dangerous condition and one that a pedestrian should ordinarily expect to encounter.

The court was also influenced by the fact that the Plaintiff admitted that the lighting in the area was “pretty decent” and that he could clearly “distinguish the rise and step up” as he entered the store.  

As such, summary judgment was granted.  

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

Source:  “Digest of Recent Opinions” Pennsylvania Law Weekly (July 17, 2018).  
 

One Possessor of Land Owes No Duty to Another Possessor of the Same Land Under Premises Liability Principles

In the case of Cholewka v. Gelso, 2018 Pa.Super. 216 (Pa. Super. July 27, 2018 Ott, J., Stabile, J., Musmanno, J.) (Op. by Ott, J.), the court affirmed a trial court’s entry of summary judgment in favor of a Defendant in a slip and fall case after finding that one possessor of land owes no duty of care to another possessor of land on the same premises. 

By way of background, the Plaintiffs and the Defendants at issue leased a residential property together from the Defendant-owner of the premises.  

More specifically, the leased property was rented by the Dawn and Ronald Cholewka, as well as their daughter, Heather, and the daughter’s boyfriend.  All four (4) tenants signed the Lease and had agreed to rent the property as is and agreed to make all necessary repairs.  

At some point during the course of the Lease, the boyfriend-tenant installed a gravel parking pad next to an existing asphalt driveway so that he would have a place to park his work truck.

One night, Dawn Cholewka was walking around the premises and tripped in the area of the driveway and the parking pad.   

The Plaintiff sued the Defendant landlords and later joined the Defendant boyfriend-tenant and his landscaping company in as Additional Defendants.  

The boyfriend-tenant filed a Motion for Summary Judgment and the trial court granted that motion after finding that the boyfriend-tenant owed no duty of care to the Plaintiff because all of the parties were co-possessors of the same land.  

 The Superior Court affirmed noting that its “research has uncovered no decision in which one possessor of land owed a duty of care to another possessor of land under premises liability principles.”  

The court otherwise also affirmed the summary judgment entered in favor of the boyfriend-tenant under general negligence principles given that the Plaintiff admitted that she was aware of the “lip” between the driveway and the gravel parking pad before she fell. The court agreed that no reasonable minds could differ as to the conclusion that the boyfriend tenant’s construction of the parking pad did not create an unreasonable risk of harm to others.

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

Source: “Digest of Recent Opinion” Pennsylvania Law Weekly (Aug. 14, 2018).

Selected For Inclusion in Best Lawyers in America

Hoping you will please indulge me in a professional announcement.

The publication Best Lawyers in America recently wrote to me advising that I have been selected to appear in their guide in recognition for high caliber work in the practice area of Personal Injury Litigation - Defendants.  I have been selected for this distinction every year since 2016 and it appears that I am the only civil litigation defense attorney from Northeastern Pennsylvania to be listed in this category.

The Best Lawyers in America publication emphasizes that the selections for inclusion in the guide is based upon peer-review surveys completed by fellow attorneys and that no fee or payment to participate is allowed.

My firm, Foley, Comerford & Cummins, is currently accepting new defense clients and new assignments to defend civil litigation matters.  Please contact me at dancummins@comcast.net for a firm resume, my personal CV, or to schedule our visit to your office to discuss how we may assist you in the defense of your civil litigation matters. 

Here is a LINK to our law firm website.

Here is a LINK to my online Avvo.com profile.


Thank you for your time and consideration in this regard,

Dan Cummins