ONE WEEK FROM TODAY: Lackawanna Pro Bono Fundraising Gala

Motion to Bifurcate Post-Koken Trial Denied in Luzerne County

In the Post-Koken case of Pena v. Van Blargen and State Farm, No. 10185-CV-2016 (C.P. Luz. Co. Oct. 1, 2019 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas denied a tortfeasor Defendant's Motion to Bifurcate the Trial of third party negligence claims from the breach of contract and bad faith claims asserted against the UIM carrier.

The Court's Order only without Opinion can be viewed HERE.

Demurrer Denied in Dog Bite Case

In the case of Roegner v. Steezar, No. 2019-CV-929 (C.P. Lacka. Co. Sept. 6, 2019 Nealon, J.), the court addressed Preliminary Objections filed by a dog owner in a dog bite case in which the Defendant filed a demurrer seeking to dismiss the action on the grounds that the allegations of the Complaint were legally insufficient to state a claim of negligence against the dog owner.  

According to the Opinion, the Plaintiffs were the guests at the property of the Defendants, Joseph Steezar and Maryellen Steezar, when the Plaintiff was suddenly attacked by a pit bull that was owned by Defendant, Ryan Steezar.  

The Plaintiffs filed a premises liability claim against the Steezars and further asserted that Ryan Steezar engaged in negligent conduct, careless conduct, gross, wanton, and reckless conduct for failing to adequately control the pit bull when he knew or should have known that the dog had a tendency to attack and had dangerous propensities.   The Plaintiff additionally alleged that Ryan Steezar had violated the dog law by failing to properly confine, secure or control his dog and/or by harboring a dangerous animal.  

The Defendant dog owner filed a demurrer asserting that Pennsylvania law establishes that no absolute liability can be imposed upon a dog owner for injuries caused by dogs. Rather, proof of the owner’s negligence is required, such as showing that the owner had prior knowledge of the dog’s vicious propensities.   

The Defendant asserted a demurrer indicating that the Plaintiff’s Complaint contained no allegations which would allow for the imposition of liability under Pennsylvania law for the Plaintiff’s alleged injuries.   

The court agreed with the Defendant that the mere ownership of a dog does not subject a dog owner to absolute liability for injuries caused by the dog.   

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon referred to the settle law that provides that, for a victim of a dog bit to establish negligence on the part of the dog’s owner, the victim must prove that (1) the dog had dangerous propensities; (2) the owner knew, or had reason to know, that the dog had those dangerous propensities; and (3) the owner failed to exercise reasonable care to secure or control the dog so as to prevent it from injuring another person.  

The court additionally stated that a dog’s dangerous propensity is determined by the dog’s behavior rather than its breed.  It was also noted that a large overly-friendly dog that jumps on to people may be considered to be judged as dangerous as a vicious dog.   

Under Pennsylvania law, there is no distinction between an animal that is dangerous and viciousness and one that this merely dangerous from playfulness.   

Accepting the Plaintiff’s allegations in the Complaint as true as required by the standard of review for a demurrer, the court found that Plaintiff had stated a cognizable cause of action in negligence against the dog owner.  

As such, the demurrer was denied and the court suggested that the Defendant could revisit the issue once discovery is completed.  

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

Judgment in Favor of Carrier on Bad Faith Claim Affirmed

In the non-precedential decision of the Pennsylvania Superior Court in the case of Lewis v. Erie Insurance Exchange, 2115 EDA 2018 (Pa. Super. Aug. 21, 2019), the Court affirmed a trial court's dismissal of a bad faith claim relative to the purchase of automobile insurance coverage.

In one issue of note, the Superior Court affirmed the trial court's ruling that precluded the Plaintiff from utilizing an insurance agent as an expert at trial.

The Opinion is also notable for the Court's handling of the word limit Rule for appellate Briefs and confirms that the Court apparently does keep an eye out for violations of the same.

In this case where the Appellant raised 11 issues, the Pennsylvania Superior Court also turned to its oft-repeated advice for appellate litigants to only raise their strongest issues as "[a] brief that raises every colorable issue runs the risk of burying good arguments[.]  Lewis citing Com. v. Showers, 782 A.2d 1010, 1015-1016 (Pa. Super. 2001)[other citations omitted].

Anyone wishing to review this non-precedential decision may click this LINK.

I send thanks to Attorney Robert J. Cahall of the Wilmington, DE office of McCormick & Priore for bringing this case to my attention.

Pennsylvania Supreme Court Reaffirms General-Verdict Rule For Personal Injury Matters on Appeal

In the case of Shiflett v. Lehigh Valley Health, No. 43 MAP 2018 (Pa. Sept. 26, 2019) (Op. by Donohue, J.), the Pennsylvania Supreme Court ruled that the Superior court erred in remanding a medical malpractice case for a new trial on damages when that decision by the Superior Court went against the “general-verdict rule” previously adopted by the Pennsylvania Supreme Court.

According to the Opinion, the Plaintiffs pursued this medical malpractice action in connection with injuries the Plaintiff allegedly suffered while in the hospital for knee surgery.

At trial, the Plaintiffs returned the verdict in favor of the Plaintiff awarding them in excess of $2 million dollars in damages.

On appeal the Pennsylvania Superior Court ruled that one of the claims upon which the Plaintiffs prevailed was barred by the statue of limitations and should not have been submitted to the jury.  After finding that some portion of the jury’s damages award may have been based on that time-barred claim, the Superior Court remanded the case for a new trial on damages.   

Upon further appeal, the Pennsylvania Supreme Court in this decision concluded that the Superior Court had erred in remanding the case for a new trial on damages given that, under the “general-verdict rule” adopted by the Pennsylvania Supreme Court in the case of Halper v. Jewish Family & Children’s Services,, 963 A.2d 1282 (Pa. 2009), the hospital waived any entitlement to a new trial on damages when the hospital failed to request a special Interrogatory on the verdict sheet that would have permitted the jury to allocate damages awarded on each claim.  

Anyone wishing to review a copy of Justice Donohue's Majority Opinion in this decision may click this LINK.

The Dissenting Opinion by Justice Saylor can be viewed HERE.

Pennsylvania Supreme Court Rules That New Stacking Waiver Required Whenever UM/UIM Coverage Increased on Policy

In its recent decision in the case of Barnard v. Traveler's Home, No. 42 EAP 2018 (Pa. Sept. 26, 2019 Wecht, J.)(Saylor, C.J., Dissenting), the Pennsylvania Supreme Court ruled that new stacking waivers are required whenever an insured increases the UM or UIM coverage on an existing policy.

Since the carrier did not secure a new waiver of stacking form from the insured in this case, the insured was entitled to receive stacked UIM coverage following an accident.

Anyone wishing to review Justice Wecht's Majority Opinion may click this LINK.

Chief Justice Saylor's Dissenting Opinion may be viewed HERE.

Limitation of Actions Provision in Contract Upheld in Products Liability Case

In the case of Stuebe v. S.S. Industries, LLC., No. 2:18-cv-04035 (E.D. Pa. Aug. 26, 2019 Jones, J.), the court granted summary judgment in a product liability case holding that a suit initiating clause in a contract between the plaintiff and the defendant that required that any suit be brought within 90 days was enforceable and not unconscionable. 

The court noted that, under Pennsylvania law, parties to a contract may shorten an applicable statute of limitations if the agreed upon period is not manifestly unreasonable.   Reviewing other cases, the court noted that similarly short periods have been held to be enforceable by other courts.  

The court in this Stuebe case additionally noted that products liability actions are no different than any other type of claim with respect to these types of suit initiating clauses that serve to reduce the statute of limitations time period.  

The court additionally noted that the clause at issue was found not to be unconscionable because the Plaintiff’s right to sue was not cut off before he knew he was injured.   The law does not require that suit limitation clauses provide a Plaintiff with enough time to fully determine the extent of his or her injuries and/or damages.  

Anyone wishing to review a copy of this decision may click this LINK.  The companion Order can be viewed HERE.

I send thanks to Attorney James A. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.