In A Case of First Impression Pennsylvania Superior Court Rules Against COVID-19 Related Business Interrupt Coverage Claim

In the case of MacMiles v. Erie Insurance Exchange, No. 1100 WDA 2021 (Pa. Super. Nov. 30, 2022) (en banc), the Pennsylvania Superior Court reviewed, as an issue of first impression, whether the Plaintiff insured tavern was entitled to business interruption coverage under its policy of insurance related to the COVID-19 pandemic.

According to the Opinion, the insurance company denied the claim based on the fact that the Plaintiff’s commercial property itself did not suffer any physical damage.

In the MacMiles case, the Pennsylvania Superior Court ruled that it was reaching “the same result as the near-universal majority of courts to have addressed this issue: the policy does not cover mere loss of use of commercial property unaccompanied by physical alteration or other condition immanent in the property that renders the property itself unusable or uninhabitable."

As such, the Pennsylvania Superior Court in this case reversed a trial court’s entry of summary judgment in favor of the insured and directed that judgment on the pleadings be granted in favor of the insurance company.

Anyone wishing to review a copy of this decision may click this LINK.  Here is a  LINK to the Concurring Opinion.

On The Same Day Pennsylvania Superior Court Rules in Favor of COVID-19 Related Business Interruption Coverage

In the case of Ungarean v. CNA and Valley Forge Ins. Co., No. 490 WDA 2021 (Pa. Super. Nov. 30, 2022) (en banc), the court ruled in favor of a Plaintiff on a business interruption coverage claim related to business losses suffered when the business was closed by governmental orders issued during the COVID-19 pandemic.

According to the Opinion, this case involved a dental practice.

In this matter, the Pennsylvania Superior Court affirmed a lower court’s finding that the Plaintiff dental practice’s Motion for Summary Judgment on the coverage issues should be granted.

The lower court and the appellate court found that the dental practice was entitled to business interruption coverage because COVID-19 and the related governmental orders had caused the Plaintiff to suffer a direct physical loss of his dental practice, which circumstances were found to be within the scope of coverage provided by the CNA policy.

The trial and appellate court also agreed that the exclusions relied upon by CNA were not applicable. Those exclusions included the contamination, consequential loss, fungi, wet rot, dry rot, microbes, and the acts of decisions, ordinance or law exclusions.

Of note, in a footnote 3 the Pennsylvania Superior Court pointed to a decision by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas in the case of SWB Yankees v. CNA Fin. Corp., 2021 WL 3468995 (C.P. Lacka. Co. 2021) as confirming another way that insureds may demonstrate that they have satisfied the “direct physical loss or damage” to cover property in order to secure coverage.

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

Court Addresses Liability of EMTs/Ambulance Crew Members

In the case of Balderach v. Pennsylvania Medical Transport, Inc., No. 30007 of 2016, C.A. (C.P. Lawr. Co. Nov. 5, 2022 Cox, J.), the court denied a Defendant’s Motion for Summary Judgment in a medical malpractice case.

The court noted that, while the Pennsylvania Emergency Medical Services Systems Act provides that emergency medical services providers are immune from suit unless the claimant establishes gross negligence or willful misconduct, the Plaintiff’s evidence in this matter, which included two (2) medical expert reports, served to raise genuine issues of material fact on the question of whether the Defendants acted with gross negligence in treating the decedent during a cardiac event.

The court pointed to the record that the Plaintiff’s experts asserted that the two (2) EMTs involved were allegedly grossly negligent in their attempts to resuscitate the decedent. One of the experts also asserted that the EMTs should have transported the decedent to a closer medical facility.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 23, 2022).

Sovereign Immunity Supports Summary Judgment In Favor Of PennDOT Relative to Claims Regarding Placement of a Bus Stop

In the case of Essington v. Monroe County Transit Auth., No. 5117-CV-2020 (C.P. Monroe Co. Aug. 15, 2022 Williamson, J.), the court granted the Motion for Summary Judgment filed by the Defendant, PennDOT, in a case involving a pedestrian Plaintiff who had exited a bus and was struck while crossing the roadway under nighttime conditions.

The Plaintiff alleged that PennDOT was negligent by allowing a dangerous condition to occur on its property, i.e., the roadway. More specifically, the Plaintiff alleged that PennDOT was negligent in the planning, designing, controlling, locating, and designation of a bus stop on a state road in a manner that created dangerous conditions.

The Plaintiff also faulted PennDOT for failing to erect signs, lights, guardrails, bus shelters, crosswalks, or other features to protect disembarking bus passengers.

In granting the Motion for Summary Judgment, the court relied upon the Sovereign Immunity Act under 42 Pa. C.S.A. §8522(b). 

The court found that none of the exceptions under that Act were applicable to the case presented. The court emphasized that, in order for liability to attach to PennDOT, a dangerous condition must derive, originate, or have its source that the Commonwealth realty. This is also known as the real estate exception to Sovereign Immunity.

Judge David J. Williamson noted that the Plaintiff’s allegations did not implicate any alleged defects on the land itself. The court noted that, had PennDOT installed the items noted by the Plaintiff, and those items were defective in some manner, then PennDOT could be held liable. However, under Pennsylvania law, the failure to install the items noted by the Plaintiff did not implicate an exception to the immunity afforded the governmental agency under Pennsylvania law.

The court additionally noted that where the Co-Defendant, Monroe County Transit Authority, chose to have a bus stop was not a material defect of the real estate itself and was not a condition created by PennDOT. 

Rather, the Co-Defendant, Monroe County Transit Authority, was the entity that chose where to have their bus stops. The court noted that the Plaintiff did not produce any evidence that PennDOT played any part in the decision to allow the bus stop in the area or any evidence that the business was a dangerous condition of the real estate itself.

The court also rejected the Plaintiff’s argument that PennDOT was negligent for allowing the bus stop to exist and in failing to take steps to inspect, discover, or correct any defects, or to ensure that the real estate was safe for its regular and intended use as a bus stop. The court ruled that the real property exception to the Sovereign Immunity Act only applies to a dangerous condition of Commonwealth real estate and not to negligent policies or activities regarding real estate. The court noted that a failure to inspect has been previously ruled in Pennsylvania to be a policy or an activity which is not within the real estate exception to the immunity statute.

The court also noted that the intended use of the road was as a roadway for vehicular traffic and not for the placement of bus stops. As such, any allegations by the Plaintiff regarding a lack of lighting, narrow shoulders, or safe pedestrian accommodations such as crosswalks, sidewalks, or pedestrian crossing signs, were found not to relate to the design of the roadway itself or to its use as a roadway. As such, those allegations did not serve to defeat PennDOT’s Motion for Summary Judgment. In sum, the court found that the Plaintiff’s expert had not offered any opinion that the roadway itself as designed, caused the accident.

For all of these reasons, and others, the court granted summary judgment in favor of PennDOT.

Anyone wishing to review this decision may click this LINK    


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 3, 2022).

GODFATHER CLE IS THIS FRIDAY, DECEMBER 2d -- STILL TIME TO REGISTER

 

LESSONS FROM THE GODFATHER

An entertaining one hour ethics CLE that takes famous quotes from the movies that make up The Godfather Trilogy and applies them to the practice of law.

by

Daniel E. Cummins, Esq.

CUMMINS LAW

FRIDAY, DECEMBER 2, 2022

Noon to 1 p.m.

(1 Ethics CLE)

Live in the Presidents' Room in the Law Library in the Luzerne County Court House

and also 

via ZOOM

Technology Assistance to be provided by

CLE is Free for W-BLLA Members

$35.00 for Non-Members

TO REGISTER GO TO www.Luzernecountybar.com

(When registering, please be sure to provide your name and Attorney ID Number)

All payments must be received 48 hours in advance of the program

To pay by check:  Please mail check payable to the 

"Wilkes-Barre Law and Library Association."

Mail to the Law Library at: 

W-BLLA

Room 23

200 North River Street

Wilkes-Barre, PA 18711

If you have any questions, please call Gail Kopiak at

(570) 822-6712 or email Gail at 

Gail.Kopiak@luzernecounty.org

Content of UIM Waiver Form Upheld By Third Circuit (Not Precedential)

In the case of Keeler v. Esurance Insurance Services, Inc., No. 21-2449 (3d Cir. Oct. 18, 2022 Jordan, J., Porter, J., and Phipps, J.) (Op. by Phipps, J.) (marked “Not Precedential), the Third Circuit Court of Common Pleas affirmed a district court’s ruling in favor of the UIM carrier and found that the carrier was correct in its denial of coverage and that the Plaintiff’s bad faith claim was without merit.

According to the Opinion, this case involved a claim for UIM benefits related to a collision between a motorcycle and a motor vehicle.

The Plaintiff’s injuries allegedly exceeded the Defendant driver’s liability insurance coverage limit and, as such, the motorcyclist and his wife sought UIM benefits under their own motorcycle insurance policy issued by Esurance.

However, the record before the court confirmed that, when the Plaintiffs originally purchased that policy, they expressly waived UIM coverage in writing. As such, the carrier refused to pay.

The Plaintiffs sued and asserted that the waiver could not be enforced and that, as a result, they should be entitled to a bad faith recovery due to an alleged improper denial of coverage.

As noted, the court disagreed and found that the waiver of UIM coverage signed by the Plaintiff was proper and met the requirements of 75 Pa. C.S.A. §1731. The Third Circuit agreed with the district court’s finding that the UIM rejection form satisfied the prominent-type-and-location requirements in terms of the language of the waiver form.

The Third Circuit also agreed with the district court’s decision that any alleged violations of the renewal notice provision were not remediable through a civil action.

Note that the household exclusion was not at issue in this case because the Plaintiffs were trying to seek UIM benefits under their own motorcycle policy that covered the motorcycle that the Plaintiff was operating at the time of the accident.  In other words, the Plaintiffs were not attempting to recover UIM benefits under some other policy covering some other vehicle in the household.

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


I send thanks to Attorney Joseph Hudock of the Pittsburgh office of the law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C.

Arbitration Agreement Bars Lawsuit in Case Involving a Fall From a Truck

In the case of Waters v. Express Container Services, 2022 Pa. Super. 182 (Pa. Super. Oct. 18, 2022 Collins, J., Olson, J., Dubow, J.) (Op. by Collins, J.), the Pennsylvania Superior Court found that a Plaintiff was bound by the arbitration provisions of an equipment lease for the truck he was inspecting at the time of the accident such that the Plaintiff was required to arbitrate his claims for personal injury instead of pursuing them by way of a lawsuit.

According to the Opinion, the Plaintiff was allegedly injured when he fell from a catwalk on the top of a tanker-trailer that he was inspecting at a trucking terminal.   

In its decision, the Pennsylvania Superior Court re-affirmed the notation that Pennsylvania law favors the enforcement of the arbitration agreements.  This was particularly so where the validity of the arbitration agreement in this case was undisputed.

The court stated that a contract clause in this matter, which required the arbitration of any claims arising out of or relating to the contract, also served to cover tort or other non-contract causes of action.

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


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