In its recent decision in the case of Jones v. Unitrin Auto and Home Insurance Company, No. 397 W.D.A. 2011 (Pa. Super. Feb. 6, 2012 Musmanno, Alan and Mundy J.J.), (Opinion by Mundy, J.) (Alan J. dissenting), Court addressed coverage issues raised in a declaratory judgment action filed by an injured party insured in an underinsured (UIM) motorist benefits claim.
The question presented in this case centered around whether inclusion of additional language by the UIM carrier on its underinsured motorist insurance rejection form contained in the insured’s application failed to specifically comply with the statutory requirements and was therefore void.
Under 75 Pa. C.S. §1731, mandated requirements are set forth for the language of a rejection of underinsured motorist benefits form. According to the Opinion, the Unitrin Auto & Home Insurance Company UIM rejection form included all of the language mandated by §1731(c), (c.1), but also included an additional sentence that was not in the statutory form. The additional sentence read: “By rejecting this coverage, I am also signing the waiver on P. 13 rejecting stacked limits of underinsured motorist coverage.”
The Superior Court held that by including the additional language noted, the carrier failed to specifically comply with the statutory requirements with regards to the underinsured motorist insurance rejection form and, as such, the form was found void.
In reaching this decision, the Court noted that there was no appellate decisions addressing the affect of additional words on the validity of §1731(c) rejection form.
The Jones v. Unitrin court analyzed other decisions surrounding this issue, such as decisions addressing a carrier’s omission of certain words from the required form, American Intern. Ins. Co. v. Vaxmonsky, 916 A.2d 1106 (Pa. Super. 2006), and the Pennsylvania Supreme Court decision regarding whether the mandated form had to appear alone on a single page (it does not), Winslow-Quattlebaum v. Maryland Ins. Group, 752 A.2d 878 (Pa. Super. 2000).
Noting that the prior decisions have required that the subject form “specifically comply” with the requirements of §1731(c), the Superior Court in this Jones v. Unitrin case found that by adding a sentence to the form between the required language and the signature line, which sentence did not directly relate to the rejection of UIM coverage, the Unitrin UIM rejection form did not “specifically comply” with §1731(c) as required by §1731 (c.1).
In so ruling, the Pennsylvania Superior Court also refused to follow the prior decision of the Middle District Federal Court of Pennsylvania in the case of Unitrin Auto & Home Ins. Co. v. Heister, 2005 W.L. 2314372 (M.D. Pa. 2005) in which that court held that a UIM rejection form identical to the one at issue in this matter did specifically comply with §1731(c).
In sum, the Jones v. Unitrin Pennsylvania Superior Court held that the carrier’s additions to the prescribed language represented a deviation from the requirements of §1731 on the UIM rejection form rendered that form void. As such, the case was remanded back to the trial court for further proceedings.
Anyone desiring a copy of this case may contact me at dancummins@comcast.net
Tuesday, February 28, 2012
Erie County Court of Common Pleas Severs Post-Koken Breach of Contract and Bad Faith Claims
In his February 22, 2012 Erie County Opinion and Order in the case of Santos v. Erie Insurance Exchange, No. 12835-Civil-2011 (C.P. Erie Co. Feb. 22, 2012 Connelly, J.), Judge Shad Connelly granted the carrier’s Motion to Sever the Plaintiffs’ UIM breach of contract claim and bad faith claim in a post-Koken matter. The Court also sustained the Defendant’s Motion to Strike claims for punitive damages and attorney’s fees asserted under the breach of contract portion of the claim.
According to the Opinion, after a motor vehicle accident, the Plaintiff filed suit against Erie Insurance Exchange as the UIM carrier alleging a breach of contract and bad faith. The Defendant carrier responded by filing Preliminary Objections seeking, in part, to severe the breach of contract and bad faith claims for purposes of discovery and trial.
In the Opinion, the court noted that the Defendant had also separately filed a Motion to Stay Discovery related to the bad faith claim along with a Motion for Protective Order blocking the depositions of the Defendant’s claims adjuster. According to the Opinion, that separate motion was granted in terms of the stay of discovery and any deposition of the claims representative was limited to matters related to the breach of contract claim.
With regards to these Preliminary Objections at issue, the Defendant carrier argued that the breach of contract and bad faith claims should be severed so as to “facilitate the orderly presentation of evidence…and promote judicial economy.” The Defendant carrier also asserted that the bad faith discovery must be stayed because internal claims handling procedures, mental impressions of the claims handlers, and the Defendant carrier’s policies and procedures were not discoverable for purposes of UIM trial.
The Plaintiffs countered by arguing that the manner in which the Defendant performed under its contract was clearly relevant as to whether or not it breached a contract. The Plaintiff also asserted that a severance of the claims would not promote judicial economy.
In his Opinion, Judge Connelly confirmed that the Pennsylvania appellate courts have not yet ruled on the propriety of staying discovery in these types of cases.
Relying upon the severance rule found under Pa. R.C.P. 213(b), and the cases construing that rule, as well as a number of post-Koken trial court decisions on the issue from around the Commonwealth, Judge Connelly ruled that the breach of contract claim and the bad faith claim should be severed.
Concisely, Judge Connelly found, as have other court decisions on the issue, that "[i]t is in the best interests of judicial economy and fairness to stay discovery related to the bad faith claim until after disposition of the underlying claim.” Santos at p. 6. Accordingly, the Court granted the Defendant carrier’s Motion to Sever the claims for trial and discovery.
The Court also granted the Defendant carrier’s Motion to Strike the Plaintiff’s claim for punitive damages and attorney’s fees as to the breach of contract claim. The Court noted that, under Pennsylvania law, these types of damages are not recoverable under a breach of contract action. In so ruling, the Court pointed out that the Plaintiff essentially agreed with this position of the Defendant on this issue in terms of the breach of contract claim only.
I thank the prevailing attorneys Gregory P. Zimmerman and Craig Murphey of the Erie, Pennsylvania law firm of MacDonald, Illig, Jones & Britton, LLP for advising me of this decision.
Anyone desiring a copy of this decision in the case of Santos v. Erie Insurance Exchange may contact me at dancummins@comcast.net.
According to the Opinion, after a motor vehicle accident, the Plaintiff filed suit against Erie Insurance Exchange as the UIM carrier alleging a breach of contract and bad faith. The Defendant carrier responded by filing Preliminary Objections seeking, in part, to severe the breach of contract and bad faith claims for purposes of discovery and trial.
In the Opinion, the court noted that the Defendant had also separately filed a Motion to Stay Discovery related to the bad faith claim along with a Motion for Protective Order blocking the depositions of the Defendant’s claims adjuster. According to the Opinion, that separate motion was granted in terms of the stay of discovery and any deposition of the claims representative was limited to matters related to the breach of contract claim.
With regards to these Preliminary Objections at issue, the Defendant carrier argued that the breach of contract and bad faith claims should be severed so as to “facilitate the orderly presentation of evidence…and promote judicial economy.” The Defendant carrier also asserted that the bad faith discovery must be stayed because internal claims handling procedures, mental impressions of the claims handlers, and the Defendant carrier’s policies and procedures were not discoverable for purposes of UIM trial.
The Plaintiffs countered by arguing that the manner in which the Defendant performed under its contract was clearly relevant as to whether or not it breached a contract. The Plaintiff also asserted that a severance of the claims would not promote judicial economy.
In his Opinion, Judge Connelly confirmed that the Pennsylvania appellate courts have not yet ruled on the propriety of staying discovery in these types of cases.
Relying upon the severance rule found under Pa. R.C.P. 213(b), and the cases construing that rule, as well as a number of post-Koken trial court decisions on the issue from around the Commonwealth, Judge Connelly ruled that the breach of contract claim and the bad faith claim should be severed.
Concisely, Judge Connelly found, as have other court decisions on the issue, that "[i]t is in the best interests of judicial economy and fairness to stay discovery related to the bad faith claim until after disposition of the underlying claim.” Santos at p. 6. Accordingly, the Court granted the Defendant carrier’s Motion to Sever the claims for trial and discovery.
The Court also granted the Defendant carrier’s Motion to Strike the Plaintiff’s claim for punitive damages and attorney’s fees as to the breach of contract claim. The Court noted that, under Pennsylvania law, these types of damages are not recoverable under a breach of contract action. In so ruling, the Court pointed out that the Plaintiff essentially agreed with this position of the Defendant on this issue in terms of the breach of contract claim only.
I thank the prevailing attorneys Gregory P. Zimmerman and Craig Murphey of the Erie, Pennsylvania law firm of MacDonald, Illig, Jones & Britton, LLP for advising me of this decision.
Anyone desiring a copy of this decision in the case of Santos v. Erie Insurance Exchange may contact me at dancummins@comcast.net.
Summary Judgment Granted in Monroe County Slip and Fall Case
Judge Jennifer Harlacher Sibum of the Monroe County Court of Common Pleas recently issued a summary judgment in favor of a Defendant in the slip and fall case of Skulnik v. Tyerman, No. 836-Civil-2011 (C.P. Monroe Co. Feb. 13, 2012 Harlacher Sibum, J.).
According to the Opinion, the Plaintiff was allegedly injured as a result of a slip and fall accident that occurred on the Defendant’s driveway leading to a home. The Plaintiff claimed that the Defendants were negligent in failing to provide a safe driveway or warn of a dangerous or defective condition for business invitees.
The Defendants filed a Motion for Summary Judgment arguing that the Plaintiff was unable to show that dangerous levels of snow and ice accumulated so as to render the Defendant’s liable under the hills and ridges doctrine. The Defendants also asserted that he Plaintiff failed to connect the driveway conditions as a cause of his fall.
In her Opinion, Judge Harlacher Sibum confirmed that the Plaintiff was indeed a business invitee of the Defendants. According to the Opinion, accompanied by a professional inspector, visited the property in order to inspect its physical condition. The property at issue had been listed for sale by the Defendants who had invited individuals to come and view the property.
However, the Court found that, based upon the record presented, the Plaintiff had failed to offer evidence that the Defendants knew or should have known of any alleged dangerous condition on the premises.
According to the Opinion, the Defendant had testified that she saw no snow on the driveway on the morning of the incident. She also noted that her husband had still salted the driveway, a task he performed every morning prior to leaving to work. The record also showed that the Defendants were not even made aware of this alleged slip and fall incident until receiving a call from a claims adjuster several days after the fact.
Reviewing the Plaintiff’s testimony, the Plaintiff had asserted that there was a light snow in the driveway when he arrived at the property. The Plaintiff admitted that he did not recall having any trouble walking to the garage and did not feel any slippage of his feet. The Plaintiff also stated that he had no recollection of seeing anything on the driveway that caused him any concern. The Plaintiff additionally confirmed in his deposition testimony that he had not informed the Defendants of any dangerous conditions of the driveway prior to the time he fell.
The Court also found that the Plaintiff failed to meet the requirements of the hills and ridges doctrine. The hills and ridges doctrine provides that, given the impossible burden of requiring people to always keep their walkways free of ice and snow under the existing climatic conditions, provides that an owner or occupier of land is not liable for falls occurring on the property where generally slippery conditions exist unless the owner or possessor of land has allowed the ice and snow to unreasonably accumulate in ridges or elevations.
The Court found that the Plaintiff had failed to show any evidence of snow and ice that had accumulated in any ridges or elevations of such a nature that his travel was unreasonably obstructed or dangerous. The Plaintiff also failed to show that the possessors of land had any notice of any such alleged condition. Rather, the Plaintiff had only testified that there was a “light” snow on the driveway no more than one half in accumulations. The Court reiterated that the Plaintiff admitted that she did not recall having any problems walking up the driveway at his arrival to the premises.
In the absence of any evidence to support the same, the Court rejected the Plaintiff’s claim that he felt a “ridge” of ice under the light snow after he fell when he was pushing himself off of the ground. The Court noted that, in any event, the Plaintiff had no personal knowledge as to the length of time that that ridge allegedly existed prior to his incident. Based upon the Plaintiff’s testimony, the Court also found that, even if the Plaintiff’s testimony was accepted, the alleged accumulation of snow and ice, as described, was not in a ridge or elevation of such size in nature that travel was unreasonably obstructed or constituted a danger to pedestrians.
Lastly, the Court also found that the Plaintiff had not connected the allegedly dangerous accumulation of ice and snow to the fall that occurred.
Rather, a review of the Plaintiff’s testimony not only indicated that there was a very small accumulation of snow, that he never saw any “ridges,” and that he did not experience any slippage under his feet when he first arrived at the property. The evidence also confirmed that, with regards to the fall, the Plaintiff only testified that he was standing next to the inspector and the next thing the Plaintiff new, he had fallen to the ground. During his deposition testimony, the Plaintiff stated that he was merely standing and fell.
The Court found that the Plaintiff’s testimony describing a fall while standing in the driveway was not enough to support a claim that the driveway conditions caused the fall. The Court noted that mere speculation that the ice and snow caused the fall is not enough under the burden of proof required.
Based upon the above, the Court found that the Plaintiff’s claims were barred both by general principles of negligence as well as the hills and ridges doctrine. Accordingly, the Defendants’ Motion for Summary Judgment was granted.
Anyone desiring a copy of this case may contact me at dancummins@comcast.net.
According to the Opinion, the Plaintiff was allegedly injured as a result of a slip and fall accident that occurred on the Defendant’s driveway leading to a home. The Plaintiff claimed that the Defendants were negligent in failing to provide a safe driveway or warn of a dangerous or defective condition for business invitees.
The Defendants filed a Motion for Summary Judgment arguing that the Plaintiff was unable to show that dangerous levels of snow and ice accumulated so as to render the Defendant’s liable under the hills and ridges doctrine. The Defendants also asserted that he Plaintiff failed to connect the driveway conditions as a cause of his fall.
In her Opinion, Judge Harlacher Sibum confirmed that the Plaintiff was indeed a business invitee of the Defendants. According to the Opinion, accompanied by a professional inspector, visited the property in order to inspect its physical condition. The property at issue had been listed for sale by the Defendants who had invited individuals to come and view the property.
However, the Court found that, based upon the record presented, the Plaintiff had failed to offer evidence that the Defendants knew or should have known of any alleged dangerous condition on the premises.
According to the Opinion, the Defendant had testified that she saw no snow on the driveway on the morning of the incident. She also noted that her husband had still salted the driveway, a task he performed every morning prior to leaving to work. The record also showed that the Defendants were not even made aware of this alleged slip and fall incident until receiving a call from a claims adjuster several days after the fact.
Reviewing the Plaintiff’s testimony, the Plaintiff had asserted that there was a light snow in the driveway when he arrived at the property. The Plaintiff admitted that he did not recall having any trouble walking to the garage and did not feel any slippage of his feet. The Plaintiff also stated that he had no recollection of seeing anything on the driveway that caused him any concern. The Plaintiff additionally confirmed in his deposition testimony that he had not informed the Defendants of any dangerous conditions of the driveway prior to the time he fell.
The Court also found that the Plaintiff failed to meet the requirements of the hills and ridges doctrine. The hills and ridges doctrine provides that, given the impossible burden of requiring people to always keep their walkways free of ice and snow under the existing climatic conditions, provides that an owner or occupier of land is not liable for falls occurring on the property where generally slippery conditions exist unless the owner or possessor of land has allowed the ice and snow to unreasonably accumulate in ridges or elevations.
The Court found that the Plaintiff had failed to show any evidence of snow and ice that had accumulated in any ridges or elevations of such a nature that his travel was unreasonably obstructed or dangerous. The Plaintiff also failed to show that the possessors of land had any notice of any such alleged condition. Rather, the Plaintiff had only testified that there was a “light” snow on the driveway no more than one half in accumulations. The Court reiterated that the Plaintiff admitted that she did not recall having any problems walking up the driveway at his arrival to the premises.
In the absence of any evidence to support the same, the Court rejected the Plaintiff’s claim that he felt a “ridge” of ice under the light snow after he fell when he was pushing himself off of the ground. The Court noted that, in any event, the Plaintiff had no personal knowledge as to the length of time that that ridge allegedly existed prior to his incident. Based upon the Plaintiff’s testimony, the Court also found that, even if the Plaintiff’s testimony was accepted, the alleged accumulation of snow and ice, as described, was not in a ridge or elevation of such size in nature that travel was unreasonably obstructed or constituted a danger to pedestrians.
Lastly, the Court also found that the Plaintiff had not connected the allegedly dangerous accumulation of ice and snow to the fall that occurred.
Rather, a review of the Plaintiff’s testimony not only indicated that there was a very small accumulation of snow, that he never saw any “ridges,” and that he did not experience any slippage under his feet when he first arrived at the property. The evidence also confirmed that, with regards to the fall, the Plaintiff only testified that he was standing next to the inspector and the next thing the Plaintiff new, he had fallen to the ground. During his deposition testimony, the Plaintiff stated that he was merely standing and fell.
The Court found that the Plaintiff’s testimony describing a fall while standing in the driveway was not enough to support a claim that the driveway conditions caused the fall. The Court noted that mere speculation that the ice and snow caused the fall is not enough under the burden of proof required.
Based upon the above, the Court found that the Plaintiff’s claims were barred both by general principles of negligence as well as the hills and ridges doctrine. Accordingly, the Defendants’ Motion for Summary Judgment was granted.
Anyone desiring a copy of this case may contact me at dancummins@comcast.net.
Sunday, February 26, 2012
Beaver County Court of Common Pleas Allows Amendment of Post-Koken Complaint
Tort Talkers may recall an early post-Koken case out of Beaver County by the name of Bradish-Klein v. Kennedy, No. 11548 - 2009 (C.P. Beaver Co. 2012). This post provides an update in that matter.
In this post-Koken case it appears that the claim against the third party tortfeasor has since been settled and the Plaintiff has continued on with the UIM claim against State Farm. The case has proceeded through the discovery efforts, including State Farm’s request for the insured to undergo an IME even though the insured had previously undergone an IME at the request of the third party tortfeasor.
The Bradish-Klein case recently came back before the Court again on the Plaintiff’s Motion to Amend its Complaint to include a bad faith count against State Farm, alleging a period of delay in the payment of the UIM benefits and with regards to State Farm’s alleged “forcing” the insured to undergo an additional independent medical examination.
After argument and briefs submitted on the Plaintiff’s Motion to Amend to add a bad faith count, Judge Anthony Kwidis granted the Plaintiff’s Motion to Leave of Court to file the Amended Complaint. In his two lined Order, the Court indicated that any claims of lack of specificity of the claims presented would be addressed after the Amended Complaint was filed.
It has also been reported that the judge would additionally entertain a Motion to Stay the bad faith count pending the resolution of the UIM count. That remains to be seen.
Anyone desiring a copy of Judge Kwidis’ Order granting the Motion to File an Amended Complaint may click on this link.
In this post-Koken case it appears that the claim against the third party tortfeasor has since been settled and the Plaintiff has continued on with the UIM claim against State Farm. The case has proceeded through the discovery efforts, including State Farm’s request for the insured to undergo an IME even though the insured had previously undergone an IME at the request of the third party tortfeasor.
The Bradish-Klein case recently came back before the Court again on the Plaintiff’s Motion to Amend its Complaint to include a bad faith count against State Farm, alleging a period of delay in the payment of the UIM benefits and with regards to State Farm’s alleged “forcing” the insured to undergo an additional independent medical examination.
After argument and briefs submitted on the Plaintiff’s Motion to Amend to add a bad faith count, Judge Anthony Kwidis granted the Plaintiff’s Motion to Leave of Court to file the Amended Complaint. In his two lined Order, the Court indicated that any claims of lack of specificity of the claims presented would be addressed after the Amended Complaint was filed.
It has also been reported that the judge would additionally entertain a Motion to Stay the bad faith count pending the resolution of the UIM count. That remains to be seen.
Anyone desiring a copy of Judge Kwidis’ Order granting the Motion to File an Amended Complaint may click on this link.
Thursday, February 23, 2012
Summary Judgment Entered In York County Limited Tort Case
In the recent December 16, 2011 decision by Judge John W. Thompson, Jr., of the York County Court of Common Pleas in the case of McWeeney v. Estate of Strickler, No. 2009-SU-6582-01 (C.P. York Dec. 16, 2011 Thompson, J.), the Court granted a Defendant’s Motion for Summary Judgment and denied a Plaintiff’s Motion for Partial Summary Judgment in a Limited Tort case.
According to the Opinion, at the time of the accident, the injured party Plaintiff was operating a vehicle owned by her fiancé. That vehicle was covered by Progressive Insurance Company and listed the fiancé as the “Named Insured” under a Limited Tort policy. However, both the injured party Plaintiff and her fiancé were listed as principal drivers on the policy declarations page. The court additionally noted that the injured party Plaintiff was a permissive driver of the vehicle on the date of the accident.
The Defendant filed a Motion for Summary Judgment arguing that the Plaintiff was covered by the Limited Tort option and had not sustained any serious injuries so as to breach the Limited Tort threshold. In response, the Plaintiff filed a counter-motion arguing that she was not bound by the Limited Tort option because she was not “a named insured” or “insured” within the definition provided under the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa. C.S. §1705.
In its decision, the Court found, as a matter of law, that the Plaintiff was insured under the Limited Tort option of the Progressive policy. The Court noted that, under an application of the MVFRL, as well as the terms of the Progressive Insurance policy, it appeared that the injured party Plaintiff fell within the definition of an “insured person” under that policy, at the very least, as a permissive driver of the covered vehicle and as a person listed as one of the principal drivers on the declarations page.
Based on these facts, the Court felt that the Plaintiff did indeed fall under the definition of a “named insured” as found under 75 Pa.C.S. §1705(f) (“a named insured” for purposes of §1705 is “any individual identified by name as an insured in a policy of private passenger motor vehicle insurance.”).
The Court went on state that, as a named insured, the injured party Plaintiff would be held to the same tort option selected by the other named insured under the policy, i.e., the Limited Tort option in this case.
Having found that the injured party Plaintiff was bound by the Limited Tort option, the Court went on to note that, in its filings, the Plaintiff admitted that, if the Plaintiff was indeed Limited Tort, the Plaintiff agreed that her injuries did not rise to the level of a serious bodily injury to pierce the Limited Tort threshold. Accordingly, the Court ruled that, based upon this admission, the Plaintiff was unable to recover any non-economic loss, or pain and suffering damages, in this case.
Furthermore, since the Plaintiff admitted that her injuries did not affect her ability to earn income given that she was a full-time college student at the time of the accident, the Court went on to grant the Defendant’s Motion for Summary Judgment in its entirety as there was no valid economic damages claim presented.
I thank the prevailing defense attorney, Erick Violago, of the Harrisburg law firm of Griffith, Strickler, Lerman, Solymos & Calkins for forwarding this case to my attention. Anyone desiring a copy of this case, may click this link.
According to the Opinion, at the time of the accident, the injured party Plaintiff was operating a vehicle owned by her fiancé. That vehicle was covered by Progressive Insurance Company and listed the fiancé as the “Named Insured” under a Limited Tort policy. However, both the injured party Plaintiff and her fiancé were listed as principal drivers on the policy declarations page. The court additionally noted that the injured party Plaintiff was a permissive driver of the vehicle on the date of the accident.
The Defendant filed a Motion for Summary Judgment arguing that the Plaintiff was covered by the Limited Tort option and had not sustained any serious injuries so as to breach the Limited Tort threshold. In response, the Plaintiff filed a counter-motion arguing that she was not bound by the Limited Tort option because she was not “a named insured” or “insured” within the definition provided under the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa. C.S. §1705.
In its decision, the Court found, as a matter of law, that the Plaintiff was insured under the Limited Tort option of the Progressive policy. The Court noted that, under an application of the MVFRL, as well as the terms of the Progressive Insurance policy, it appeared that the injured party Plaintiff fell within the definition of an “insured person” under that policy, at the very least, as a permissive driver of the covered vehicle and as a person listed as one of the principal drivers on the declarations page.
Based on these facts, the Court felt that the Plaintiff did indeed fall under the definition of a “named insured” as found under 75 Pa.C.S. §1705(f) (“a named insured” for purposes of §1705 is “any individual identified by name as an insured in a policy of private passenger motor vehicle insurance.”).
The Court went on state that, as a named insured, the injured party Plaintiff would be held to the same tort option selected by the other named insured under the policy, i.e., the Limited Tort option in this case.
Having found that the injured party Plaintiff was bound by the Limited Tort option, the Court went on to note that, in its filings, the Plaintiff admitted that, if the Plaintiff was indeed Limited Tort, the Plaintiff agreed that her injuries did not rise to the level of a serious bodily injury to pierce the Limited Tort threshold. Accordingly, the Court ruled that, based upon this admission, the Plaintiff was unable to recover any non-economic loss, or pain and suffering damages, in this case.
Furthermore, since the Plaintiff admitted that her injuries did not affect her ability to earn income given that she was a full-time college student at the time of the accident, the Court went on to grant the Defendant’s Motion for Summary Judgment in its entirety as there was no valid economic damages claim presented.
I thank the prevailing defense attorney, Erick Violago, of the Harrisburg law firm of Griffith, Strickler, Lerman, Solymos & Calkins for forwarding this case to my attention. Anyone desiring a copy of this case, may click this link.
Wednesday, February 22, 2012
Major Pennsylvania Supreme Court Ruling: Uninsured Motorists Can Sue for Wage Loss and Medical Expenses
The Pennsylvania Supreme Court has issued a long-awaited important decision in the case of Corbin v. Khosla, 48 EAP 2010 (Pa. Feb. 21, 2012 McCaffery, J) in which they addressed the issue of whether an uninsured driver injured in a motor vehicle accident may sue the defendant driver for economic damages (medical expenses and wage loss).
The Supreme Court noted that Pennsylvania's Motor Vehicle Responsibility Law prohibits such uninsured drivers from recovering first party benefits (medical expenses and wage loss) under 75 Pa.C.S.A. 1714. However, the Court also pointed out that the same uninsured drivers are deemed to be considered to be covered by the limited tort option under 75 Pa.C.S.A. 1705 which statute allows limited tort claimants to recover economic damages (medical expenses and wage loss) from negligent defendant drivers.
This issue came to the Pennsylvania Supreme Court by way of a certification of the question presented to the Court from the Third Circuit Court of Appeals.
After reviewing the history and law applicable to the issue presented, the Pennsylvania Supreme Court noted the distinct differences between how first party claims and third party claims are viewed such that the Court found that there was no ambiguity in the above stated statutory provisions.
The Pennsylvania Supreme Court went on to hold that, while there are some penalties assessed to an uninsured driver for driving without insurance (no first party benefits, limited tort status, criminal penalties), there is no recognized prohibition against an injured uninsured motorist pursuing a claim against another negligent driver to recover the injured party's economic damages such as wage loss and medical expenses in addition to the ordinary claims for pain and suffering.
Concisely, the Pennsylvania Supreme Court ruled that Section 1714 of the MVFRL does not preclude an injured uninsured motorists from pursuing and recovering medical expenses or wage loss from the other negligent driver.
Justice McCaffery's Majority Opinion can be viewed here.
Justice Saylor's Concurring Opinion can be viewed here.
The Supreme Court noted that Pennsylvania's Motor Vehicle Responsibility Law prohibits such uninsured drivers from recovering first party benefits (medical expenses and wage loss) under 75 Pa.C.S.A. 1714. However, the Court also pointed out that the same uninsured drivers are deemed to be considered to be covered by the limited tort option under 75 Pa.C.S.A. 1705 which statute allows limited tort claimants to recover economic damages (medical expenses and wage loss) from negligent defendant drivers.
This issue came to the Pennsylvania Supreme Court by way of a certification of the question presented to the Court from the Third Circuit Court of Appeals.
After reviewing the history and law applicable to the issue presented, the Pennsylvania Supreme Court noted the distinct differences between how first party claims and third party claims are viewed such that the Court found that there was no ambiguity in the above stated statutory provisions.
The Pennsylvania Supreme Court went on to hold that, while there are some penalties assessed to an uninsured driver for driving without insurance (no first party benefits, limited tort status, criminal penalties), there is no recognized prohibition against an injured uninsured motorist pursuing a claim against another negligent driver to recover the injured party's economic damages such as wage loss and medical expenses in addition to the ordinary claims for pain and suffering.
Concisely, the Pennsylvania Supreme Court ruled that Section 1714 of the MVFRL does not preclude an injured uninsured motorists from pursuing and recovering medical expenses or wage loss from the other negligent driver.
Justice McCaffery's Majority Opinion can be viewed here.
Justice Saylor's Concurring Opinion can be viewed here.
Failure To Disclose Claim Allowed To Proceed in Lackawanna County Residential Real Estate Transaction Case
In his recent February 8, 2012 decision in the case of Brown v. Jones, No. 11-Civil-5253 (C.P. Lacka. Co. Feb. 8, 2012 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed Preliminary Objections in the nature of a demurrer filed by the Defendants against the Plaintiff’s causes of action for violation of the Real Estate Seller Disclosure Law, 68 Pa. C.S. §7301 et. seq., and common law fraud.
According to the Opinions, in April of 2010, the Plaintiffs and the Defendants executed an Agreement of Sale related to the Plaintiff’s purchase of the Defendant’s residential property.
In connection with the real estate transaction, the Defendant prior homeowner provided the Plaintiff new homeowner with an original Property Disclosure Statement along with a Supplemental Disclosure Statement which the original homeowner had prepared and signed in compliance with the above-stated law.
In that documentation, the original homeowner represented that the property’s roof had never leaked during the court of their ownership nor were they aware of any leakage, accumulation, dampness in the basement or any repairs to control any water or dampness problem in the basement. The original homeowner also denied any knowledge or any water damage or drainage issues on the property. Based upon these representations, the new homeowners closed on the property and purchased the same.
Thereafter, during a significant rainfall in the Fall of 2010, the new homeowners sustained extensive water damage to their finished basement allegedly due to considerable water leakage in four separate areas of the basement.
After the water damage persisted with each ensuing rainfall or snow melt, the new homeowners took remedial action by removing the drywall and carpeting in the basement. That allegedly revealed that the water damages were of a “historic nature." There was also allegedly evidence that the foundation had been previously treated which allegedly indicated knowledge of a leakage problem by the prior owners. According to the Opinion, the basement floor continued to become covered with water with each additional rainfall.
The new homeowners also alleged other water damage as a result of a leaking roof. The new homeowners asserted that, after the purchase of their home and after noticing water damage from the leaking roof, they discovered plastic sheeting on the attic floor along with absorbing carpeting which lead them to believe that the prior homeowners were also aware of leaking water from the roof area.
Based on these recurring issue, the new homeowners filed suit.
In their demurrer to the Plaintiff's Complaint, the Defendants asserted that the Plaintiffs had failed to allege with any particularity the specific allegedly fraudulent representations made by the original homeowners. The Defendants asserted that it appeared that the Plaintiffs were simply concluding that because the property sustained water damages, the original homeowners may have known about leaks and failed to disclose them.
According to the Court, it appeared that the gist of the Defendant's argument in support of their demurrer was that the requisite intent to defraud could not established under Pennsylvania law by circumstantial evidence.
After reviewing the case presented and providing a detailed analysis of the Real Estate Seller Disclosure Law, Judge Nealon found that the Plaintiff’s Complaint stated sustainable causes of action under that law as well as under a claim of fraudulent misrepresentation. In so ruling, Judge Nealon also pointed out that the scienter component of a fraud claim “may be established by circumstantial evidence.”
Accordingly, the Court overruled the Defendants’ Preliminary Objections and allowed the Plaintiff’s claim to proceed.
Anyone desiring a copy of this Decision by Judge Nealon in the case of Brown v. Jones may contact me at dancummins@comcast.net.
According to the Opinions, in April of 2010, the Plaintiffs and the Defendants executed an Agreement of Sale related to the Plaintiff’s purchase of the Defendant’s residential property.
In connection with the real estate transaction, the Defendant prior homeowner provided the Plaintiff new homeowner with an original Property Disclosure Statement along with a Supplemental Disclosure Statement which the original homeowner had prepared and signed in compliance with the above-stated law.
In that documentation, the original homeowner represented that the property’s roof had never leaked during the court of their ownership nor were they aware of any leakage, accumulation, dampness in the basement or any repairs to control any water or dampness problem in the basement. The original homeowner also denied any knowledge or any water damage or drainage issues on the property. Based upon these representations, the new homeowners closed on the property and purchased the same.
Thereafter, during a significant rainfall in the Fall of 2010, the new homeowners sustained extensive water damage to their finished basement allegedly due to considerable water leakage in four separate areas of the basement.
After the water damage persisted with each ensuing rainfall or snow melt, the new homeowners took remedial action by removing the drywall and carpeting in the basement. That allegedly revealed that the water damages were of a “historic nature." There was also allegedly evidence that the foundation had been previously treated which allegedly indicated knowledge of a leakage problem by the prior owners. According to the Opinion, the basement floor continued to become covered with water with each additional rainfall.
The new homeowners also alleged other water damage as a result of a leaking roof. The new homeowners asserted that, after the purchase of their home and after noticing water damage from the leaking roof, they discovered plastic sheeting on the attic floor along with absorbing carpeting which lead them to believe that the prior homeowners were also aware of leaking water from the roof area.
Based on these recurring issue, the new homeowners filed suit.
In their demurrer to the Plaintiff's Complaint, the Defendants asserted that the Plaintiffs had failed to allege with any particularity the specific allegedly fraudulent representations made by the original homeowners. The Defendants asserted that it appeared that the Plaintiffs were simply concluding that because the property sustained water damages, the original homeowners may have known about leaks and failed to disclose them.
According to the Court, it appeared that the gist of the Defendant's argument in support of their demurrer was that the requisite intent to defraud could not established under Pennsylvania law by circumstantial evidence.
After reviewing the case presented and providing a detailed analysis of the Real Estate Seller Disclosure Law, Judge Nealon found that the Plaintiff’s Complaint stated sustainable causes of action under that law as well as under a claim of fraudulent misrepresentation. In so ruling, Judge Nealon also pointed out that the scienter component of a fraud claim “may be established by circumstantial evidence.”
Accordingly, the Court overruled the Defendants’ Preliminary Objections and allowed the Plaintiff’s claim to proceed.
Anyone desiring a copy of this Decision by Judge Nealon in the case of Brown v. Jones may contact me at dancummins@comcast.net.
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