Claims Reps Cannot Be Sued Under Pennsylvania's Insurance Bad Faith Statute

The excellent Pennsylvania and New Jersey Insurance Bad Faith Case Law Blog recently highlighted the case of Reto v. Liberty Mutual Insurance, No. 18-2483 (E.D. Pa. Aug. 8, 2018 Savage, J.), in which the court confirmed that a bad faith action under the bad faith statute cannot be brought against a claims representative.

In this matter, the Plaintiff brought a UIM breach of contract, loss of consortium, and bad faith action against both the claims representative and the carrier. 

The carrier argued that the claims representative was “fraudulently joined” by the Plaintiff in an effort to defeat Federal Court diversity jurisdiction. The carrier additionally asserted that bad faith actions against claims representative are not permissible. 

The Eastern District Federal Court agreed with the carrier’s position and noted that the claims asserted against the claims representative were “wholly insubstantial and frivolous.”   

The court stated that, as a matter of law, there is no basis to support a claim against the claims representative because only the carrier may be held liable under the claims presented.   The court noted that the claims representative, who was only an agent of the carrier, did not have a separate contract with the insured.

The court additionally held that a bad faith claim could not be asserted against a claims representative as the bad faith statute only applies to insurance companies.  

As such, the court held that the Plaintiff had improperly joined the claims representative in this lawsuit.  As such, the claims representative was dismissed from the case and the Plaintiff's motion to remand was denied.

Anyone wishing to review this decision may click this LINK.

I send thanks for Attorney Lee Applebaum of the Philadelphia law firm of Fineman, Krekstein & Harris, and the writer of the Pennsylvania and New Jersey Insurance Bad Faith Case Law blog, for bringing this case to my attention.

Judge Nealon Addresses Motion to Preclude Completion of Deposition Due to Deponent's Anxiety

Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas recently addressed a Motion for Protective Order to Preclude the Completion of a Deposition Due to the Deponent's Anxiety in the wrongful death medical malpractice case of Ezrin v. Hospice Preferred Choice, Inc., No. 16-CV-7103 (C.P. Lacka. Co. Oct. 3, 2018 Nealon, J.).

This case arose out of a negligence action pertaining to hospice care provided by a nursing home.

After a charge nurse's deposition was recessed when her anxiety disorder reportedly became exacerbated, and after a dispute arose over the conclusion of the deposition, the nursing home filed the motion for protective order at issue.

After reviewing the record provided to the court on the issue, Judge Nealon ruled that that nursing home had not met its burden of supporting its request that the deposition be adjourned and not recommenced.

In particular, the court noted that a physician's report submitted on behalf of the anxious nurse, the nurse's physician noted that the nurse did not feel at the time of the deposition that she could complete her deposition.  In his report, the doctor also noted his opinion that the deposition should be postponed, as opposed to prohibited, in order to allow the nurse's anxiety to be brought back under control.

The court also noted that the record confirmed that the nurse was employed full-time by the nursing home and was responsible for 30 patients during each shift.

Overall, the court concluded that the nursing home had failed to show "good cause" to permanently prevent the resumption of the deposition on the grounds of unreasonable burden, oppression, or annoyance.  As such, the motion for protective order was denied and the nursing home was directed to produce the nurse to complete her deposition prior to the expiration of the discovery deadline.

In his Opinion, Judge Nealon cautioned the attorneys, including the attorney for the nursing home, against interrupting the deposition process, particularly after a question is asked and before the witness answered.  The court cited to case law confirming that there is no need for an opposing attorney to act as an intermediary, interpreting the meaning of questions for the witness or engaging in other unnecessary interruptions, during the course of a deposition.

The court noted that a less disquieting atmosphere during the recommenced deposition of the nurse may assist in keeping her anxiety at bay.

This Opinion contains a nice recitation of the standard of review for addressing motions for protective orders under Pa.R.C.P. 4012.  The Opinion can be viewed at this LINK

Rule 1925 Opinion By Trial Court Issued In Newsuan Case Regarding Contact with Witnesses in Civil Litigation Matter

In the case of Newsuan v. Republic Services, Inc., No. 1248 EDA 2018 (C.P. Phila. Co. Sept. 14, 2018 Rau, J.), the trial court judge issued a Rule 1925 Opinion supporting the trial court’s prior decision on the discovery issues presented in this matter relative to the attorney client privilege and the attorney work product doctrine. 

Tort talkers may recall a prior Tort Talk blog post on the court’s original decision in this case [June 20, 2018 - click HERE to view that post].

In this matter, the court granted a Plaintiff’s Motion to Compel the defense to produce certain information about potential witnesses who worked at a facility at the time of the Plaintiff’s accident. According to the Opinion, the defense attorneys allegedly refused to produce information about the witnesses because those attorneys allegedly wanted to interview them first and possibly even offer to represent the witnesses for free in order to create an attorney-client relationship with the witnesses and thereby preclude anyone else from interviewing them.  

In this more recent Rule 1925 Opinion, Judge Rau reiterated the rationale of the Court that the defendants had waived their claims by failing to assert appropriate objections before the trial court.  

Judge Rau also reiterated that the appeal has no merit because the trial court’s Order did not require the disclosure of any privilege attorney-client communications or attorney work product. In this regard, the court noted that the interviews with potential witnesses at issue occurred prior to the formation of any attorney-client relationship between the defense counsel and the witnesses and, therefore, were not privileged.  

The court also noted that the appeal by the appellants was improper as a trial court order concerning routine discovery or factual information is not the proper subject for an appeal in the middle of a litigation.  

Anyone wishing to review this decision may click this LINK.

Latest Facebook Discovery Decision Uncovered (Northampton County)

For the latest social media discovery decision, check out the Northampton County Court of Common Pleas ruling in Allen v. Sands Bethworks Gaming, LLC, No. C-0048-CV-2017-2279 (C.P. North. Co. Aug. 6, 2018 Dally, J.).

This case arose out of the Plaintiff's alleged slip and fall in a bathroom at the Sands Casino in Bethlehem, Pennsylvania.

During the course of discovery, the Plaintiff provided limited information in response to social media interrogatories seeking information regarding her online activity.  The Plaintiff confirmed in her responses that she used Facebook and Twitter but declined to provide any more detailed information other than to confirm that nothing had been deleted from her accounts since the date of the incident.

The defense responded with a motion to compel for more information, including information from the private portions of the Plaintiff's social media profiles.

In his detailed Opinion, Judge Dally provided an excellent overview of the general rules of discovery pertinent to this issue as well as a review of the previous social media discovery decisions that have been handed down around the Commonwealth by various county courts of common pleas as well as by courts from other jurisdictions.

No Pennsylvania appellate court decision was referenced by the Allen court as there are apparently still no such decisions to date.

In his Opinion, Judge Dally noted that the Defendant had pointed out discrepancies between the Plaintiff's deposition testimony regarding her alleged limitations from her alleged accident-related injuries and photos available for review on the public pages of the Plaintiff's Facebook profile depicting the Plaintiff engaging in certain activities.

After reviewing the record before the court, Judge Dally ruled that the defense had failed to establish the factual predicate of showing sufficient information on the Plaintiff's public pages to allow for discovery of information on the Plaintiff's private pages.

In a footnote 6, the court also emphasized that such a factual predicate must be established with respect to each separate social media site the Defendant wishes to access further.

The court additionally noted that, in any event, "it would be disinclined to follow the line of Common Pleas cases that have granted parties carte blanche access to another party's social medial account by requiring the responding party to  to turn over their username and password, as requested by the Defendant in this case."  This the court found would be overly intrusive, would cause unreasonable embarassment and burden, and represented a discovery request that is not properly tailored with reasonable particularity as required by the Rules of Civil Procedure pertaining to discovery efforts.

In light of the above reasoning, the Defendant's Motion to Compel was denied.

Anyone wishing to review this decision may click this LINK.


To review the Tort Talk Facebook Discovery Scorecard click this LINK. 

The Scorecard can always be freely accessed by going to www.TortTalk.com and scrolling down the right hand column and clicking on the date noted under "Facebook Discovery Scorecard."

If you are willing to do so, please do not hesitate to send me a copy of any Social Media discovery or admissibility decisions you may come across in order that the Tort Talk Facebook Discovery Scorecard and be continually updated.  Thanks very much.  DEC

Application of Doctrine of Forum Non Conveniens Results in Transfer of Case from Philadelphia to Chester County

In the case of Ranck v. Coatesville Little League, Inc., September Term 2017 No. 01990 (C.P. Phila. Co. July 25, 2018 Patrick, J.), the Philadelphia Court of Common Pleas granted a Defendant’s Petition to Transfer Venue based upon the doctrine of forum non conveniens.  

This matter arose out of an incident when the Plaintiff was allegedly injured while volunteering at a concession stand during a little league baseball game and a fryer full of hot cooking oil fell upon her, causing injuries.  Although the incident apparently occurred in Chester County, the Plaintiff filed suit in Philadelphia County.

  

The Defendant moved to transfer venue based upon the doctrine of forum non conveniens.  

The Plaintiff initially asserted that the Defendant waived this argument regarding improper venue because it did not raise the issue in Preliminary Objections.  

The court explained that the issues of improper venue and forum non conveniens were two separate and distinct issues.  

The court reiterated the rule of law that the question of improper venue could be waived if not raised by way of Preliminary Objections as required by the Rules of Civil Procedure.

However, the issue of forum non conveniens was not waived by the failure to assert the same in Preliminary Objections.  

The court noted that the issue of forum non conveniens was properly raised by way of petition under Pa.R.C.P. 1006(d)(1).  As such, the court found that the Defendant’s failure to raise the doctrine of forum non conveniens by way of Preliminary Objections did not serve to defeat its request for relief in this regard.  

Turning to the merits of the motion, the court held that venue in Philadelphia County would be both vexatious and oppressive under the circumstances. The court noted that none of the parties resided or did business in Philadelphia. The incident did not occur in Philadelphia.   All of the Plaintiff’s medical providers and other witnesses were located outside of Philadelphia. The court also stated that it was foreseeable that a visit to the ball park in Chester County where the incident happened may prove necessary for the jury to obtain a full understanding of the case at trial. 

The court even ruled that, given the Plaintiff’s claim of extensive physical injuries, venue in Philadelphia County would be oppressive to the Plaintiff as well in terms of having to travel to that county for the proceedings.  

Given that the record before the court confirmed that the parties’ connection to Philadelphia County were tenuous, the court found that a transfer of the case to Chester County based upon the doctrine forum non conveniens was warranted.  

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

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

SAVE THE DATE: NOVEMBER 1, 2018 - LACKAWANNA PRO BONO GALA

SAVE THE DATE: Presenting Forrest Gump Themed CLE at November 8, 2018 Luzerne Co. Bench Bar Conference

On November 8, 2018, along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price, I will be presenting a CLE seminar entitled "The Law is Like a Box of Chocolates:  A Forrest Gump Themed Civil Litigation Update" at the Luzerne County Bench Bar Conference at the Mohegan Sun Casino in Wilkes-Barre, PA.

Video clips of famous quotes from the movie Forrest Gump will be used in an effort to make the civil litigation update an entertaining hour for the attendees.

Hope to see you there.

We thank Attorney Jamie Anzalone, the Chair of the Luzerne County Bench Bar Committee and partner of the Anzalone Law Firm for this opportunity to present.

We also thank Joe Cardoni of Exhibit A for assisting us in putting the Powerpoint Presentation together and for be willing to assist us with the playback at the seminar.