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Thank you for reading and supporting Tort Talk.

With gratitude, 
Dan Cummins

Failure To Provide 6 Month's Notice to Government Defendant Should Be Raised as a New Matter Defense

In the case of Meese v. Slater-Bailey, No. 10342 of 2019, C.A. (C.P. Lawrence Co. Oct. 9, 2019 Motto, J.), the court held that an issue regarding whether a Plaintiff provided six (6) months’ notice to a governmental entity Defendant after the date of an injury regarding the claims presented was an issue that was required to be raised by way of an Answer and New Matter and not Preliminary Objections.

In this case, the Plaintiff was allegedly injured when her vehicle was struck by a school bus.

The Defendant school district filed Preliminary Objections to the Complaint raising the sole issue of whether the Complaint was legally insufficient due to the Plaintiffs’ alleged failure to provide notice to the school district and the Attorney General within six (6) months of the date of injury of the potential claim, as required by 42 Pa. C.S.A. §5522. That statute provides that an injured party must given written notice to the governmental entity Defendant prior to commencing a civil action.

The court ruled that the failure to provide the required §5522 notice was not a jurisdictional defect that could be raised by way of Preliminary Objections, particularly where the Plaintiffs were not required to plead compliance with that statute as an element of any cause of action. Rather, the court noted, the failure of written notice was an affirmative defense that a Defendant should plead in a New Matter under Rule 1030 of the Rules of Civil Procedure.

As such, the court overruled the Defendant’s Preliminary Objection and ordered the Defendant to proceed with the filing of the Answer and New Matter to the Complaint.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (October 29, 2019).

Pennsylvania Superior Court Finds That Service Was Properly Completed Even Though Green Return Receipt Lost

In the case of Sawyers v. Davis, 2019 Pa. Super. 219 (Pa. Super. Oct. 22, 2019 Bowes, J., Olson, J., Stabile, J.) (Op. by Bowes, J.) (Olson, J, dissenting), the Pennsylvania Superior Court ruled that a trial court erred in dismissing the Plaintiff’s personal injury action against a defendant motorist for improper service.

This case arose out of a motor vehicle accident.

The appellate court found that the Plaintiff had offered sufficient evidence to show that he complied with the requirements of service of process under the Pennsylvania Rules of Civil Procedure. The Superior Court noted that, given that the Plaintiff had met his burden of proof on the issue of service, the burden then shifted to the Defendant driver, who had failed to offer any evidence to refute the Plaintiff’s evidence that service complied with the Rules of Civil Procedure.

The central issue in the matter involved the Plaintiff properly serving an out of state Defendant by way of a certified letter, return receipt requested. According to the Opinion, the green return receipt card was lost by the United States Post Office. However, the Post Office supplied tracking documentation that showed delivery of the letter.  Also produced by the Post Office was a scanned signature of the person who accepted the letter.

There was also additional evidence presented that the Defendant driver, who was a cousin of the Plaintiff, otherwise had notice of the lawsuit.

The appellate court found that the trial court did not view the evidence in a light most favorable to the Plaintiff as the non-moving party when it dismissed the case. The appellate court also viewed the lack of a green return receipt card as a mere technical defect. The Superior Court additionally reiterated that there was evidence that the Defendant had notice of the action.  As such, the trial court's dismissal of the lawsuit was reversed.

Anyone wishing to review a copy of the Majority decision in Sawyers may click this LINK.  The Dissenting Opinion may be viewed HERE.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 5, 2019).

Pennsylvania Supreme Court Mandates Motions Practice for First Party PIP Medical Exams

The Plaintiff’s bar scored yet another victory at the Pennsylvania Supreme Court level with decision issued by the court in the combined matters of Sayles v Allstate, No. 58 MAP 2018 (Pa. Nov. 20, 2019)(Op. by Todd, J.) and Scott v Travelers.

The case involved the practice of automobile insurance companies requesting insureds to attend PIP medical exams as may be required by the terms of the insurance policy.

The Plaintiffs argued that such policy terms requiring insureds to submit to an exam or exams at the request of the carrier irreconcilably conflicted with 75 Pa.C.S.A. Section 1796 of the MVFRL, which is entitled “Mental or physical examination of a person."

That law basically provides that, whenever a person’s medical condition is at issue in circumstances as applicable to PIP claims and other identified matters, the court may order that person to attend a medical examination “upon motion for good cause shown.”

The Plaintiff’s argument in Sayles was that Section 1796 required insurers to file a motion with the court and to demonstrate good cause in order to compel a PIP exam and that even when good cause is shown, it is the court and not the insurer who would select the examiner.

The Pennsylvania Supreme Court rejected the current practice of PIP insurers compelling its insureds to attend a PIP independent medical examinations on the basis of policy provisions and ruled that insurers must, instead, file a Petition with the Court and demonstrate good cause. Also, it will now be an independent judge who will select the medical examiner and not the carrier.

The Court declined to state whether its decision should apply only prospectively or retroactively and left that issue for another day.  See fn. 13.

Anyone wishing to review the Majority Opinion by Justice Todd may click this LINK.

Justice Baer's Concurring Opinion can be viewed HERE.

Justice Wecht's Dissenting Opinion can be viewed HERE.

I send thanks to Attorney Scott B. Cooper for bringing this case to my attention.

Commentary:  The Pennsylvania Supreme Court's decision in this regard appears to be of little moment as it is a rare event that an insured is sent for multiple independent medical examinations in the PIP context, which appears to have been the main complaint of those that pushed the issue.

Notably, to the extent that motions practice will now be required for those typical cases where an auto carrier wishes to secure an IME as part of the claims process, the Pennsylvania Supreme Court did not provide any guidance on how the already overburdened trial courts are to deal with the possible onslaught of new litigation that may result in this regard by plaintiffs who insist that the now required motions practice be followed.  Nor was any guidance provided by the Supreme Court to the trial court judges on how to select an appropriate doctor to complete the requested examination and/or what the manner, scope or conditions of the exam should be in any given case.

In the end, it appears that what was a non-issue has now been turned into a monumental problem for the trial courts going forward.

Pennsylvania Superior Court Rules that Gallagher v. GEICO Household Exclusion Decision Applies Retroactively

The Superior Court’s recent decision in the case of Kline v. Travelers, No. 104 MDA 2019 (Pa. Super. 2019 McLaughlin, J., Ford Elliott, P.J.E., Gantman, P.J.E.)(Op. By Gantman, P.J.E.), involved both the Sackett stacking issue as well as the issue of the retroactive effect of the Pennsylvania Supreme Court's eradication of the household exclusion in the Gallagher v. GEICO decision.

The trial court had ruled in favor of the insured on the Sackett issue but against the insured on the household exclusion issue.. Travelers appealed the Sackett issue, and the insured appealed the household exclusion issue.

In this Kline case, the Superior Court found in favor of the insured on both issues, vacated the lower court's decision and remanded the case for further proceedings.

The case involved issues surrounding whether the Plaintiff-insured was entitled to stack his UIM coverage on two vehicles that had been added to his policy prior to the accident where the carrier did not secure new waiver of stacking forms from him.  Another issue was whether the Plaintiff-insured was able to further stack coverage under a policy separately issued to his mother.  As such, there were inter-policy and intra-policy stacking questions at issue in this case.

With regards to the Plaintiff-insured's own policy, the Court in Kline ruled that prior precedent under the Bumbarger supported its decision that the Plaintiff should be permitted to stack the coverages under his own policy.

Relative to the Household Exclusion and the retroactive effect of the Gallagher decision, the Court in Kline ruled that, as a general rule, appellate courts are required to apply the law as it exists as of the time of appellate review before the court.  After applying the law of Gallagher, the court in Kline ruled that the Gallagher case rendered the Household Exclusion invalid such that the Plaintiff-insured could pursue stacked coverage that included the coverage under his mother's policy.

Anyone wishing to review this decision online, may click this LINK.

Sending thanks to Attorney Scott B. Cooper of the Harrisburg, PA office of Schmidt Kramer for bringing this case to my attention.

Zero Verdict for Pain and Suffering Upheld Even Though Medical Expenses Awarded

In the case of Rabuh v. Hoobrajh, No. 3:17-CV-15 (W.D. Pa. Sept. 19, 2019 Gibson, J.), the court affirmed a verdict in favor of the Plaintiff in which a jury did not enter an award to the Plaintiff for pain and suffering damages even though it awarded medical expenses.

The court in Rabuh confirmed that a jury need not award pain and suffering damages every time it awards medical expenses. Rather, a jury, under Pennsylvania law, is free to reject the Plaintiff’s testimony on pain and suffering as a credibility determination.

The record before the court confirms that there were both credibility problems for the Plaintiff and also that the Plaintiff had a pre-existing condition that was put into evidence.

This decision is also notable in that the court denied an untimely Motion for Delay Damages after applying the ten (10) day deadline for such motions under Pa. R.C.P. 238.

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

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

Default Judgment Opened Where Petition to Open Filed Within 10 Days

In the case of Guptill v. Fortune Foreclosure, LLC, No. 10101 of 2018, C.A. (C.P. Lawrence Co. Sept. 3, 2019 Motto, J.), the court granted a Defendant’s Petition to Open a Default Judgment in a real estate transaction dispute matter.

In opening the default judgment, the court emphasized that the Defendants filed their Petition to Open within the ten (10) day period set forth in Pa. R.C.P. 237.3(b).  The Court noted that, under that Rule and the Explanatory Comment related thereto, the law presumes that a petition to open a default judgment filed within the ten (10) day period is deemed to be both timely and with a reasonable explanation or legitimate excuse for the inactivity or delay involved.

The court also found that the Defendant had presented meritorious defenses in their proposed Answer and New Matter which, if proven at trial, would justify relief for the defense from the claims made.

Accordingly, the Petition to Open the Default Judgment was granted.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 1, 2019).