In his June 27, 2011 Opinion in the case of Rother v. Erie Insurance Exchange, No. 14656-Civil-2008 (C.P. Luz. June 27, 2011 Cosgrove, J.) Judge Joseph Cosgrove of the Luzerne County Court of Common Pleas addressed a declaratory judgment action involving the question of the application of a “regular use” exclusion under an Erie Insurance policy.
According to the Opinion, the Plaintiff was injured in a motor vehicle accident on March 3, 2007. At that time, he resided with his mother. The vehicle in which the Plaintiff was located in at the time of the accident was owned by his father, who restricted the Plaintiff's use of this vehicle to work or emergency purposes.
The Opinion notes that, while the Plaintiff was admittedly not driving to or from work when the accident occurred, he claimed that he was on his way to help a friend. While on his way to help a friend, the Plaintiff was involved in the subject accident that was caused by an allegedly intoxicated driver.
The tortfeasor’s carrier tendered the policy limits under the liability policy and the Plaintiff pursued an underinsured motorist claim against the Erie Insurance Exchange policy that was issued to the Plaintiff’s mother.
Judge Cosgrove noted that, while Erie acknowledged that the Plaintiff was otherwise covered by a “resident relative” under his mother’s policy, Erie had denied covered pursuant to the “regular use” exclusion in the policy. That exclusion provided that coverage was inapplicable in the following circumstances:
“Bodily injury to….a resident using a non-owned motor vehicle….which is regularly used by [that] resident, but not insured for Uninsured or Underinsured Motorists Coverage under the policy.”
According to the Opinion, the injured party Plaintiff instituted the declaratory judgment action seeking a judicial declaration that the Erie policy should indeed provide UIM coverage. The case came before Judge Cosgrove by way of Erie Insurance’s Motion for Summary Judgment in which the carrier asserted that the “regular use” exclusion precluded any coverage under the facts presented.
In addressing the summary judgment motion, Judge Cosgrove noted that there was no dispute that the Plaintiff’s use of the vehicle was of the type to which the exclusion of issue applied. He additionally noted that there was no dispute that the subject vehicle was not otherwise insured under the Erie policy issued to the Plaintiff’s mother. Nor was there any question that the Plaintiff resided with his mother.
Rather, the sole issue before the Court was whether the Plaintiff “regularly” used the subject vehicle in a way contemplated by the exclusion.
In his Opinion, Judge Cosgrove reviewed the current status of the regular use exclusion under Pennsylvania law, including a reference to the recent Opinion issued by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of Erie Insurance Exchange v. Soroka, No. 09-CIV-1056 (C.P. 2011 Lacka. Co. Nealon, J.). Judge Cosgrove noted that, while it is clear under Pennsylvania law that this “regular use” exclusion is legitimate and not contrary to public policy, the appropriate application of the exclusion was subject to the particular factual situation presented on a case by case basis.
Accordingly, Judge Cosgrove reviewed the facts of the case before him and found that the Plaintiff’s permission to use the subject vehicle was limited by his father such that there were genuine issues of material fact as to whether or not the Plaintiff “regularly” used the vehicle so as to come within the “regular use” exclusion set forth in the Erie Insurance Exchange policy.
As such, Judge Cosgrove denied the carrier’s Motion for Summary Judgment given that he was unable to say, as a matter of law, that the “regular use” restriction at issue precluded coverage under the facts presented.
Anyone desiring a copy of this case may contact me at dancummins@comcast.net.
Wednesday, August 31, 2011
Monday, August 29, 2011
Judge Terrence Nealon of Lackawanna County Addresses Landlord-Tenant Liabilities in Slip and Fall Case
In his recent August 25, 2011 decision in the case of Whitney v. Caputo and Noto, No. 2006 - CV - 3124 (C.P. Lacka. Aug. 25, 2011, Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas reviewed the common law maintenance duties of landlords and tenants with respect to snow and ice removal in situations where the landlord leases part of the premises to the tenant but continues to reside in and exercise control over the remainder of the property.
In this case there was no written lease agreement specifying who was responsible for what maintenance. The landlord owned and lived in the second story of a house where he rented out the first floor to a tenant who used the space as a hair salon. The landlord retained control over the basement, an attached garage, and the parking lot area for the premises as well.
The parking lot was situated in the rear of the property and led to a sidewalk that bordered the front entrance to the building. The tenant's first floor hair salon also had a rear door which exited to the parking lot via five exterior steps
Under the oral lease agreement between the parties, the landlord advised the tenant that he would be responsible for snow removal and maintenance of the parking lot and sidewalk. In the months leading up up to the Plaintiff's slip and fall incident, the landlord shoveled the rear parking lot, the sidewalk, and the front steps whenever it snowed. The tenant would apply salt to the back steps leading into her salon.
The Plaintiff was a client of the tenant's hair salon. When leaving the premises, the Plaintiff descended the rear steps and, as she placed her right foot on the parking lot pavement and proceeded to move her left foot from the step to the pavement surface, she slipped and fell to the ground.
The court quoted excerpts from the Plaintiff's deposition testimony. A review of that testimony confirmed that defense counsel took painstaking efforts to secure admissions from the plaintiff that she did not slip until after both of her feet had stepped onto the parking lot surface, i.e. after she had entirely separated from the steps leading down from the salon entrance.
In requesting summary judgment, the tenant argued that the landlord retained control over the building except for that portion of the building specifically leased to the tenant, i.e., the first floor hair salon such that the landlord was legally responsible for the condition of the parking lot over which he retained control. The tenant further asserted that she owed no duty to the Plaintiff with respect to the maintenance of the parking lot area. The Plaintiff argued that the tenant was still potentially liable in light of the fact that the tenant took action to maintain the steps.
In this opinion, Judge Nealon reviewed the separate duties owed by a landlord out-of-possession who leases the entire premises to the tenant versus the situation presented in Whitney where the landlord leases a portion of the premises to the tenant yet retains control over a portion of the premises.
Under Pennsylvania law, the issue of which possessor of land owes a duty to third persons is one of control. Generally speaking, a landlord who retains control of a portion of the premises, will remain responsible for that portion. In contrast, an out-of-possession landlord is generally not liable for injuries suffered by third persons on the leased premises unless the owner/landlord retained control over the dangerous portion of the premises involved.
In Whitney, Judge Nealon found that the evidence established that the landlord had leased the first floor to the tenant but retained control of the parking lot which tenant's customers were entitled to use. It was also admitted that the landlord assumed sole responsibility for the maintenance and cleaning of that lot.
Accordingly, Judge Nealon found that, under Pennsylvania law, including the application of the Restatement (Second) of Torts Section 360 ("Parts of Land Retained in Lessor's Control Which Lessee is Entitled to Use"), only the landlord had a common law duty to clear the parking lot surface. Since it was confirmed that the Plaintiff slipped and fell on the parking lot surface, the motion for summary judgment filed by the tenant Defendant was granted.
This decision by Judge Nealon provides a nice recitation of the law applicable to landlord-tenant liabilities in slip and fall cases and also provides a good reminder as to how important it is to pinpoint the exact location and manner of the plaintiff's slip or trip and fall during the plaintiff's deposition.
Anyone desiring a copy of Judge Nealon's decision from the Whitney v. Caputo and Noto case may contact me at dancummins@comcast.net.
In this case there was no written lease agreement specifying who was responsible for what maintenance. The landlord owned and lived in the second story of a house where he rented out the first floor to a tenant who used the space as a hair salon. The landlord retained control over the basement, an attached garage, and the parking lot area for the premises as well.
The parking lot was situated in the rear of the property and led to a sidewalk that bordered the front entrance to the building. The tenant's first floor hair salon also had a rear door which exited to the parking lot via five exterior steps
Under the oral lease agreement between the parties, the landlord advised the tenant that he would be responsible for snow removal and maintenance of the parking lot and sidewalk. In the months leading up up to the Plaintiff's slip and fall incident, the landlord shoveled the rear parking lot, the sidewalk, and the front steps whenever it snowed. The tenant would apply salt to the back steps leading into her salon.
The Plaintiff was a client of the tenant's hair salon. When leaving the premises, the Plaintiff descended the rear steps and, as she placed her right foot on the parking lot pavement and proceeded to move her left foot from the step to the pavement surface, she slipped and fell to the ground.
The court quoted excerpts from the Plaintiff's deposition testimony. A review of that testimony confirmed that defense counsel took painstaking efforts to secure admissions from the plaintiff that she did not slip until after both of her feet had stepped onto the parking lot surface, i.e. after she had entirely separated from the steps leading down from the salon entrance.
In requesting summary judgment, the tenant argued that the landlord retained control over the building except for that portion of the building specifically leased to the tenant, i.e., the first floor hair salon such that the landlord was legally responsible for the condition of the parking lot over which he retained control. The tenant further asserted that she owed no duty to the Plaintiff with respect to the maintenance of the parking lot area. The Plaintiff argued that the tenant was still potentially liable in light of the fact that the tenant took action to maintain the steps.
In this opinion, Judge Nealon reviewed the separate duties owed by a landlord out-of-possession who leases the entire premises to the tenant versus the situation presented in Whitney where the landlord leases a portion of the premises to the tenant yet retains control over a portion of the premises.
Under Pennsylvania law, the issue of which possessor of land owes a duty to third persons is one of control. Generally speaking, a landlord who retains control of a portion of the premises, will remain responsible for that portion. In contrast, an out-of-possession landlord is generally not liable for injuries suffered by third persons on the leased premises unless the owner/landlord retained control over the dangerous portion of the premises involved.
In Whitney, Judge Nealon found that the evidence established that the landlord had leased the first floor to the tenant but retained control of the parking lot which tenant's customers were entitled to use. It was also admitted that the landlord assumed sole responsibility for the maintenance and cleaning of that lot.
Accordingly, Judge Nealon found that, under Pennsylvania law, including the application of the Restatement (Second) of Torts Section 360 ("Parts of Land Retained in Lessor's Control Which Lessee is Entitled to Use"), only the landlord had a common law duty to clear the parking lot surface. Since it was confirmed that the Plaintiff slipped and fell on the parking lot surface, the motion for summary judgment filed by the tenant Defendant was granted.
This decision by Judge Nealon provides a nice recitation of the law applicable to landlord-tenant liabilities in slip and fall cases and also provides a good reminder as to how important it is to pinpoint the exact location and manner of the plaintiff's slip or trip and fall during the plaintiff's deposition.
Anyone desiring a copy of Judge Nealon's decision from the Whitney v. Caputo and Noto case may contact me at dancummins@comcast.net.
Thursday, August 25, 2011
Federal Middle District Judge Denies Efforts to Secure Expert's Annual Income at Trial Deposition
In the Federal Middle District Court case of Young v. Pleasant Valley School District, PICS No. 11-3953(M.D.Pa. 2011, Kane, J.), Judge Yvette Kane denied a plaintiff's motion to compel a defense expert to provide more detailed information on his general income from expert services in the year leading up to the incident in a case where the expert had already disclosed the fees he was earning in this case as well as in cases he had testified in since 2003.
The Young case involved a civil rights claim by a student against a high school teacher. The defense retained an expert in the educational field to address the claims presented. The issue at hand arose when the expert refused to answer the plaintiff's attorney's question during a trial deposition that inquired as to the amount of income the expert had earned in the past year as an expert.
In denying the plaintiff's motion to compel an answer to this question, the court emphasized that the expert testified that 50 percent of his testimony was provided for the plaintiff's side and 50 percent was provided for the defense side. As such, it appeared to the Judge that the expert did not have any financial incentive to show bias towards any plaintiff or defendant in light of the fact that he relied upon both sides equally for his income.
In light of the expert's testimony, and given the previous disclosures by the expert on his income as an expert, the court did not believe that the plaintiff had shown that an answer to the question would show bias on the part of the expert and the court was convinced that the additional information sought by the plaintiff was "overkill" and "needlessly intrusive" of the expert's privacy. Accordingly, the plaintiff's motion to compel a response from the expert was denied.
Anyone desiring a copy of this case may call the Pennsylvania Instant Case Service offered by the Pennsylvania Law Weekly (800-276-PICS) to order a copy at a small fee.
Source: Article entitled "Judge Refuses to Reveal Expert Witness' Annual Income" by Shannon P. Duffy in the August 24, 2011 edition of The Legal Intelligencer.
The Young case involved a civil rights claim by a student against a high school teacher. The defense retained an expert in the educational field to address the claims presented. The issue at hand arose when the expert refused to answer the plaintiff's attorney's question during a trial deposition that inquired as to the amount of income the expert had earned in the past year as an expert.
In denying the plaintiff's motion to compel an answer to this question, the court emphasized that the expert testified that 50 percent of his testimony was provided for the plaintiff's side and 50 percent was provided for the defense side. As such, it appeared to the Judge that the expert did not have any financial incentive to show bias towards any plaintiff or defendant in light of the fact that he relied upon both sides equally for his income.
In light of the expert's testimony, and given the previous disclosures by the expert on his income as an expert, the court did not believe that the plaintiff had shown that an answer to the question would show bias on the part of the expert and the court was convinced that the additional information sought by the plaintiff was "overkill" and "needlessly intrusive" of the expert's privacy. Accordingly, the plaintiff's motion to compel a response from the expert was denied.
Anyone desiring a copy of this case may call the Pennsylvania Instant Case Service offered by the Pennsylvania Law Weekly (800-276-PICS) to order a copy at a small fee.
Source: Article entitled "Judge Refuses to Reveal Expert Witness' Annual Income" by Shannon P. Duffy in the August 24, 2011 edition of The Legal Intelligencer.
Tuesday, August 23, 2011
Former Judge Conahan to be Sentenced on September 23, 2011
Former Luzerne County Judge Michael T. Conahan will be sentenced by Federal Middle District Judge Edwin M. Kosik on corruption charges on Sept. 23 at 9:30 a.m. in the Federal Courthouse in Scranton.
Conahan pleaded guilty last year to a federal racketeering charge that carries with it a maximum possible sentence of twenty years in prison.
Judge Amesbury of Luzerne County Addresses Future Medical Expenses Claims in Auto Accident Case
In his April 15, 2011 Opinion in the case of Ferraro v. Knies, 101 Luz. Reg. Reports 94, No. 9543-Civil-2008 (Luz. Co. April 15, 2011, Amesbury, J.), Luzerne County Court of Common Pleas Judge William Amesbury addressed the issue of the handling of future medical expenses claims in automobile accident civil litigation.
In this matter, the limited tort Plaintiff was injured as a result of a motor vehicle accident. After a trial, a Luzerne County jury returned a verdict in favor of the Plaintiff awarding damages totaling $200,000.00. Part of that award consisted of a $140,000.00 in damages for future medical expenses.
The defense relied upon 75 Pa. C.S. §1722 of the Pennsylvania Motor Vehicle Financial Responsibility Law to argue that the Plaintiff’s recovery of future medical expenses should be precluded based upon the fact that the Plaintiff was using health coverage that was provided by her current employer to pay for her medical expenses.
Plaintiff’s counsel initially argued that §1722 was not applicable because the Plaintiff’s healthcare provider was either an ERISA Plan or an HMO, which exempted it from the statutory preclusion of recovering medical expenses and gave the health insurance provider a right of subrogation which would justify and permit a recovery of an award for future medical expenses in this matter.
The Court noted, however, that it was subsequently determined that the healthcare plan was neither an ERISA plan nor an HMO and, therefore, Plaintiff’s argument was reduced to the determination of whether the future medical expenses were precluded under the argument that they were “paid or payable” as that term is defined under §1722. Section 1722 provides that were an injured party's medical expenses are "paid or payable" by certain entities or carriers, they are not recoverable in motor vehicle accident cases.
At an evidentiary hearing on whether the Plaintiff's future medical expenses would be "payable," the Plaintiff testified that she incurred out-of-pocket expenses of $40.00 per treatment because the healthcare plan treated that expense as a co-pay. The Plaintiff additionally produced documents and testimony to confirm that there was an annual $7,500.00 deductible before payment for the healthcare services would be covered by the health insurance.
In his Opinion, Judge Amesbury noted the Plaintiff’s treating physician gave testimony that provided a range as to expected future medical expenses. The jury was also instructed that the Plaintiff had an additional 40 year life expectancy according to the accepted statistical tables. As such, Judge Amesbury noted that the $140,000.00 awarded by the jury for future medical expenses divided by 40 years was approximately $4,500.00 per year.
Judge Amesbury went on to note that, based upon the testimony provided by the Plaintiff at the evidentiary hearing regarding her co-pay and the deductible of $7,500.00, the Plaintiff’s out-of-pocket payments would exceed the future projections of the jury. Accordingly, Judge Amesbury held that accepting a jury’s verdict would not result in a windfall or a double recovery to the Plaintiff.
Judge Amesbury found that “the future medical damage award of $140,000.00 [was] purely compensatory, not providing a windfall or dual recovery and specifically not “payable” so as to be precluded by §1722 of the Motor Vehicle Financial Responsibility Law.” See Opinion at p. 103.
Although the Court allowed the Plaintiff’s jury award of future medical expenses to stand, the Court rejected the Plaintiff’s request for delay damages on that portion of the verdict. Having not been provided with any legal authority to support delay damages on an award for future medical expenses, Judge Amesbury declined to award the same.
He did, however, allow for delay damages on the jury’s award for future pain and suffering as that has previously been permitted by the Pennsylvania Superior Court in the case of Gross v. Johns-Manville Corp., 600 A.2d 558 (Pa. Super. 1991), appeal denied, Fiberboard Corp. v. Gross, 613 A.2d 559 (Pa. 1992).
Anyone desiring a copy of Judge Amesbury’s Opinion in the case of Ferraro v. Knies may contact me at dancummins@comcast.net.
For more analysis on this future medical expenses issue in another Tort Talk post, including a review of decisions by Judge Terrence Nealon of Lackawanna County and Judge James Munley of the Federal Middle District Court of Pennsylvania, click here.
In this matter, the limited tort Plaintiff was injured as a result of a motor vehicle accident. After a trial, a Luzerne County jury returned a verdict in favor of the Plaintiff awarding damages totaling $200,000.00. Part of that award consisted of a $140,000.00 in damages for future medical expenses.
The defense relied upon 75 Pa. C.S. §1722 of the Pennsylvania Motor Vehicle Financial Responsibility Law to argue that the Plaintiff’s recovery of future medical expenses should be precluded based upon the fact that the Plaintiff was using health coverage that was provided by her current employer to pay for her medical expenses.
Plaintiff’s counsel initially argued that §1722 was not applicable because the Plaintiff’s healthcare provider was either an ERISA Plan or an HMO, which exempted it from the statutory preclusion of recovering medical expenses and gave the health insurance provider a right of subrogation which would justify and permit a recovery of an award for future medical expenses in this matter.
The Court noted, however, that it was subsequently determined that the healthcare plan was neither an ERISA plan nor an HMO and, therefore, Plaintiff’s argument was reduced to the determination of whether the future medical expenses were precluded under the argument that they were “paid or payable” as that term is defined under §1722. Section 1722 provides that were an injured party's medical expenses are "paid or payable" by certain entities or carriers, they are not recoverable in motor vehicle accident cases.
At an evidentiary hearing on whether the Plaintiff's future medical expenses would be "payable," the Plaintiff testified that she incurred out-of-pocket expenses of $40.00 per treatment because the healthcare plan treated that expense as a co-pay. The Plaintiff additionally produced documents and testimony to confirm that there was an annual $7,500.00 deductible before payment for the healthcare services would be covered by the health insurance.
In his Opinion, Judge Amesbury noted the Plaintiff’s treating physician gave testimony that provided a range as to expected future medical expenses. The jury was also instructed that the Plaintiff had an additional 40 year life expectancy according to the accepted statistical tables. As such, Judge Amesbury noted that the $140,000.00 awarded by the jury for future medical expenses divided by 40 years was approximately $4,500.00 per year.
Judge Amesbury went on to note that, based upon the testimony provided by the Plaintiff at the evidentiary hearing regarding her co-pay and the deductible of $7,500.00, the Plaintiff’s out-of-pocket payments would exceed the future projections of the jury. Accordingly, Judge Amesbury held that accepting a jury’s verdict would not result in a windfall or a double recovery to the Plaintiff.
Judge Amesbury found that “the future medical damage award of $140,000.00 [was] purely compensatory, not providing a windfall or dual recovery and specifically not “payable” so as to be precluded by §1722 of the Motor Vehicle Financial Responsibility Law.” See Opinion at p. 103.
Although the Court allowed the Plaintiff’s jury award of future medical expenses to stand, the Court rejected the Plaintiff’s request for delay damages on that portion of the verdict. Having not been provided with any legal authority to support delay damages on an award for future medical expenses, Judge Amesbury declined to award the same.
He did, however, allow for delay damages on the jury’s award for future pain and suffering as that has previously been permitted by the Pennsylvania Superior Court in the case of Gross v. Johns-Manville Corp., 600 A.2d 558 (Pa. Super. 1991), appeal denied, Fiberboard Corp. v. Gross, 613 A.2d 559 (Pa. 1992).
Anyone desiring a copy of Judge Amesbury’s Opinion in the case of Ferraro v. Knies may contact me at dancummins@comcast.net.
For more analysis on this future medical expenses issue in another Tort Talk post, including a review of decisions by Judge Terrence Nealon of Lackawanna County and Judge James Munley of the Federal Middle District Court of Pennsylvania, click here.
Sunday, August 21, 2011
REGISTER NOW: Seats Remain for This Week's CLE Seminar at the Mohegan Sun Casino in Wilkes-Barre, PA
CIVIL LITIGATION DEVELOPMENTS 2011
A CONTINUING LEGAL EDUCATION SEMINAR
Honoring John J. Aponick, Jr. & Thomas J. Foley, Jr.
for their 50 Years in Practice of Law
Sponsored by
THE PENNSYLVANIA DEFENSE INSTITUTE
and
THE NORTHEAST PENNSYLVANIA TRIAL LAWYERS ASSOCIATION
MOHEGAN SUN CASINO at POCONO DOWNS
Wednesday August 24, 2010
12:30 p.m. to 4:30 p.m.
2 Substantive & 1 Ethics CLE Credits
Immediately followed by Cocktail Reception at the Mohegan Sun Breakers Lounge
Cost for the CLE/Happy Hour:
• Program for claim representatives/risk managers $25.00
• Program for paralegals $50.00
• CLE program for lawyers $175.00
For reservations, pleas e-mail David Cole, Executive Director of the PDI at coled01@padefense.org.
YOU CAN REGISTER AT THE DOOR AS WELL
HOPE TO SEE YOU THERE--SHOULD BE A NICE EVENT
THANKS!
Thursday, August 18, 2011
Spoliation of Evidence Sanction Granted Against A Plaintiff
In the case of Pa. Trust v. Dorel Juv. Grp., 2011 WL 2789336, No. 07-4029 (E.D.Pa. July 18, 2011 Schiller, J.), the Eastern District Federal Court imposed a spoliation sanction against a plaintiff in a an auto accident case in which a claim was made that a child booster seat was improperly designed.
After noting that the plaintiff failed to take pictures of the seat before signing the title over to the towing service following the accident, the court found that the elements to support a spoliation sanction were established by the defense.
The court precluded the plaintiff's testimony regarding the use of the child booster seat on the day of the accident and granted the defense an adverse inference jury instruction.
This Opinion may be viewed online here.
After noting that the plaintiff failed to take pictures of the seat before signing the title over to the towing service following the accident, the court found that the elements to support a spoliation sanction were established by the defense.
The court precluded the plaintiff's testimony regarding the use of the child booster seat on the day of the accident and granted the defense an adverse inference jury instruction.
This Opinion may be viewed online here.
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