Judge Mazzoni of Lackawanna County Addresses Validity of UIM Rejection Forms (Including One that Was Backdated)

In a recent decision in the case of Petrillo v. Ace American Ins. Co., 2013-CV-306 (C.P. Lacka. Co. July 26, 2016 Mazzoni, S.J.), Senior Judge Robert A. Mazzoni of the Lackawanna County Court of Common Pleas granted a Plaintiff’s Motion for Summary Judgment and denied the insurance company’s cross-Motion for Summary Judgment in a case surrounding the validity of UIM rejection forms.  

According to the Opinion, two (2) forms were at issue.  The first was a rejection form that was signed and dated October 18, 2011 which the Plaintiff attacked as not having the requisite language for such forms as required by 75 Pa. C.S.A. §1731(c), (c.1).  

Also at issue was a second rejection form with a date of January 1, 2012, the policy’s inception date.  That rejection form was found to “mirror,” in all aspects, the statutory language of §1731(c).   The Plaintiff presented evidence that this second form had been backdated to the policy inception date.  

After reviewing the facts against the applicable law, Judge Mazzoni agreed with the Plaintiff’s contention that the failure of the first form to strictly comply with the form language required by §1731(c) rendered that rejection form void.  

As to the second form, the Plaintiff asserted that backdating the form rendered that form void.   The Defendants countered with a position that the backdating of the form was irrelevant because that form was allegedly signed months before the subject accident occurred.  

Judge Mazzoni noted that §1731(c.1) requires that the form be signed by the first named insured and be dated in order to be valid.    

The court noted that, absent evidence to the contrary, the court could not conclude as a matter of law that there existed any fraud in the backdating of the document.  However, the court went on to review differing prior court decisions on the import of  the backdating of insurance forms. 

The Petrillo court found the second, backdated waiver of UIM benefits form to be void and of no legal effect.  In so ruling, the court noted that there was an uncertainty as to when the backdating had occurred. 

Anyone wishing to review Judge Mazzoni's Opinion in the Petrillo case may click this LINK.

I send thanks to Attorney Vince Cimini of the Scranton, PA law firm of Cognetti & Cimini for bringing this case to my attention.

Pennsylvania Supreme Court to Tackle Discoverability of Peer Review Documents in Context of Med Mal Case

On July 7, 2016, the Pennsylvania Supreme Court granted allocatur in the case of Reginelli v. Boggs, to address the issue of whether a hospital can invoke privilege with regards to peer review documents prepared by an outside contractor and, if so, whether that privilege is waived when the third party shares those documents with hospital administration.  

A Superior court panel had previously ruled in a non-precedential Opinion in this case that the peer review documents created by a third party were not protected under the Peer Review Protection Act, thus affirming a Washington County trial court judge’s ruling. 

I send thanks to Attorney Thomas G. Wilkinson, Jr. of the Philadelphia office of Cozen O’Connor for bringing this notable news to my attention.   

Admissibility of Damaging Facebook Posts by Plaintiff Addressed by Western District Federal Court

A Facebook decision from a while back has been brought to my attention--this one is not on the discoverability of Facebook info;  rather, this decision pertains to the admissibility of such information at trial over the objection of the Plaintiff, in part, that the information is embarrassing.

In the Federal Western District Court of Pennsylvania decision of Newill v. Campbell Transp. Co., No. 2: 2012-CV-1344, 2015 U.S. Dist Lexis 4350 (W.D. Pa. 2015 McVerry, J.) from over a year ago, the court reviewed a Plaintiff's motion in limine to preclude the Defendant from introducing several of the Plaintiff's Facebook posts into evidence in a personal injury matter on the basis they were irrelevant, unfairly prejudicial, and potentially embarrassing.  

According to the opinion the Plaintiff's Facebook posts referenced going to the gym, landscaping, flooring, and undercoating a truck.  The Plaintiff also apparently advertised his services as a handyman, indicating that no job was too big or too small. The Court found that the posts from Plaintiff's Facebook account that reflected physical capabilities inconsistent with Plaintiff's claims of injury and limitations were relevant and embarrassment alone was found not to be a sufficient basis for excluding the posts pursuant to F.R.E. 403.  

The Court did leave the door open for the issue to be revisited during the actual trial by noting that if, at the time of trial, the Defendant attempted to introduce posts the Plaintiff felt were particularly embarrassing, the issue of admissibility could be re-raised pursuant to F.R.E. 611.

Anyone wishing to review this case, may click this LINK.

I send thanks to Brian Murren, a law clerk in the Camp Hill office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this decision to my attention.

Choice of Ways Doctrine Reviewed in Premises Liability Case

In the case of Graham v. Mohegan Sun, No. 3:14-CV-0908 (M.D. Pa. June 14, 2016 Kosik, J.), the court denied a landowner Defendant’s request for summary judgment in a trip and fall case.  

In this matter, the Plaintiff allegedly fell on a well-worn, but informal dirt path through grass on the premises.  

Judge Kosik held that it could not be held as a matter of law that the well-worn, but informal, dirt path through grass upon which the Plaintiff fell was an obviously dangerous condition so as to require dismissal under the choice of ways doctrine.

Judge Kosik reaffirmed that the choice of ways doctrine requires (1) a safe course, (2) a dangerous course, and (3) facts which would put a reasonable person on notice of the danger or actual knowledge of the danger.  

In this matter, there was no evidence of any signs advising of a safer route.  

The court otherwise ruled that a construction company’s whose worker allegedly directed the Plaintiff on a path to take could also be liable under a contractual provision requiring the construction company to take reasonable precautions on the land.  

Overall, the court found that issues of fact precluded the entry of summary judgment in favor of the defense.

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

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

Summary Judgment Denied in Lycoming County Slip and Fall Case

In a recent decision out of the Lycoming County Court of Common Pleas in the case of Goldy v. Woodlands Bank, No. 15-01334 (C.P. Lycoming Co. May 31, 2016 Gray, J.), Judge Richard A. Gray denied a landowner Defendant’s Motion for Summary Judgment in a trip and fall case.  

Judge Richard A. Gray
Lycoming County

 

The landowner initially asserted that the Plaintiff assumed the risk by walking over an allegedly dangerous condition that the Plaintiff had previously encountered.  The landowner Defendant also argued that it was entitled to summary judgment given that the Plaintiff was unable to state exactly what caused her to fall.  

The court denied the motion after finding issues of fact precluded the entry of summary judgment.  

 

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

Declaratory Judgment Entered In Favor of Homeowner's Carrier on Intentional Acts Exclusion in Shooting Case

Summary judgment was recently entered in favor of a carrier in a declaratory judgment action of Erie Insurance Exchange v. Moore, et al., No. CR 2014 - 4931 (C.P. Wash. Co. May 31, 2016 Emery, J.).  The court entered summary judgment in favor of the carrier on a coverage question that implicated an intentional acts exclusion under a homeowner’s policy in a case arising out of a tragic shooting.

The party injured in the shooting sued the shooter’s estate seeking damages for his personal injuries.  The Estate representatives sought coverage under the shooter’s ERIE homeowner's policy.  ERIE provided the Estate with a defense to the lawsuit, but also commenced a declaratory judgment action, seeking a declaration that no coverage was owed because shooter’s actions were intentional and, thus, barred from coverage for several reasons, including the policy's "intentional act" exclusion.  The injured party argued in the coverage action that the shooter did not intend to shoot him, but rather accidentally shot him during the struggle.

The parties filed cross-motions for summary judgment.  By Order of May 31, 2016, the Honorable Katherine Emery, president judge of the Washington County Court of Common Pleas, entered an Order granting ERIE's Motion for Summary Judgment and denying Carly's Motion. 

In her Opinion, Judge Emery essentially found that the policy covers only "accidents" and not intentional acts.  The Court quoted a previous Superior Court decision that held "[a]n insured intends an injury if he desired to cause the consequences of his act or if he acted knowing that such consequences were substantially certain to result." 

Judge Emery found that, under all of these circumstances, the shooter's acts that resulted in the injury of Carly were intentional, per this definition.  Specifically, Judge Emery held that "[t]he shooting of Carly plainly resulted from human agency.  Moreover, the prospect of injury from a gun firing during a physical struggle over that gun was no less plainly and reasonably anticipated.  As such, while tragic, the shooting of [the injured party] by [the shooter], cannot fall within the definition of an accident." 

Anyone wishing to review this case may click this LINK

I send thanks to the prevailing defense attorney Craig Murphey of the Erie, Pennsylvania law firm of MacDonald, Illig, Jones & Britton, LP for bringing this case to my attention. 

Judge Gibbons Reaffirms His Corporate Negligence Decision in Med Mal Context

In another decision from Judge James A. Gibbons in the case of Astleford v. Delta Medix, P.C., No. 2015-CV-5134, the court addressed various motions including the Defendant’s Motions for Reconsideration of the court’s prior decision overruling the Defendants’ Preliminary Objections to the Plaintiff’s claims of corporate negligence against a physician’s practice. 

Judge Gibbons reviewed the applicable law the court emphasized that, in reviewing the case before that this Preliminary Objections stage, the Plaintiff had not averred that the Defendants’ function as a mere physician’s office or even as a group of physicians.  

Judge Gibbons reaffirmed his previous holding that the Plaintiff has pled sufficient facts to state a claim for the imposition of corporate negligence against the corporate Defendants.   Judge Gibbons noted that, whether that claim survives throughout the case is a question for another day.   Accordingly, the Defendants’ Motion for Reconsideration was denied.   

Anyone wishing to review Judge Gibbon's decision on the Motions for Reconsideration, may click this LINK.

Judge Gibbons' original decision in this case on these issues can be viewed HERE.

For a recent Opinion by Judge Terrence R. Nealon, also of Lackawanna County, on the same issue in the case of Brink v. Marian Community Hospital click HERE to view that Tort Talk post which contains a Link to that decision.