My latest article, entitled "You'd Better Watch Your Step: Premises liability defendants are having a banner year in Pennsylvania courts," appeared in the Pennsylvania Law Weekly last week. The article reviewed a number of defense-oriented decisions from across the Commonwealth of Pennsylvania in premises liability cases.
That article, as well as other articles of mine, can be viewed under my profile on JDSupra at http://www.jdsupra.com/profile/danielcummins.
This particular article on the premises liability cases can be found by clicking this link: http://www.jdsupra.com/post/documentViewer.aspx?fid=792bd369-89d3-4aff-9d68-2a4be9ee0c20.
Also, continuing the trend of recent cases in favor of Defendant landowners, the Beaver County Court of Common Pleas issued an opinion in Orlowski v. Magg’s, Inc., PICS Case No. 09-1822(C.P. Beaver Oct. 27, 2009, Kwidis, J.) granting summary judgment in favor of a bowling alley in a trip and fall case.
Relying upon the rule that a person has a duty to look where he or she is walking and see that which is obvious, the court granted summary judgment to the defendant in a case where a plaintiff tripped over the step separating the bowling alley floor from the bathroom floor, which was slightly higher.
The court was impressed by the fact that the step was painted bright yellow against the dark carpet of the bowling alley floor and the beige ceramic tile bathroom floor. Also there was a "Watch Your Step" sign posted outside of the restroom. Furthermore, during her deposition, the plaintiff admitted that she was not watching where she was going.
Judge Kwidis of the Beaver County Court of Common Pleas found that the plaintiff had a duty to watch where she was going and that the landowner had no duty is owed to protect invitees from open and obvious dangers. He also relied upon the Pennsylvania cases holding that a mere difference in elevation or doorstops were not deemed to be dangerous conditions.
A copy of this case can be secured from the Pennsylvania Law Weekly for a small fee by calling 1-800-276-7427 and giving the above PICS number.
My firm and I continue to handle premises liability cases (as well as auto accident matters) all across Northeastern Pennsylvania. Please feel free to contact me at dancummins@comcast.net should I be able to assist you in any regard with such matters.
Monday, November 2, 2009
Friday, October 30, 2009
JUST ANOTHER DAY -- A SHORT STORY
I submitted the following short story in the Pennsylvania Lawyer magazine's 2009 Short Story Fiction Contest but, unfortunately, it was not one of the three stories selected for publication in the November/December edition. I offer it here for your (hopefully) reading enjoyment:
JUST ANOTHER DAY
by
DANIEL E. CUMMINS, ESQUIRE
For Attorney J. Benjamin Hogan III, life was good as long as he didn’t care too much. After fifteen years of practicing law, most of it spent defending insurance companies in all kinds of personal injury cases, Attorney Hogan believed he was just getting into the stride of his career. Without much effort, he had been made partner after seven years in a firm that was flourishing. Despite the current recession, there were plenty of car accidents to go around to justify his existence.
Attorney Hogan was tall and thin with broad shoulders, perfect for filling out the pin-striped double-breasted suits he was fond of wearing. He wore his jet black, wavy hair just a tad too long. On occasion, he would toy with wearing a pair of dark, rectangular reading glasses believing they gave him a more sophisticated look.
Ben, as he was known by his peers, liked to believe that he was a well respected civil litigator known for his good “people” skills. Yet, in recent years, he much preferred to simply deal with the papers stuffed in his many brown accordion style files as opposed to the various types of people who were his clients. In his career as a litigator, people had always been a nuisance who stood in the way of his ability to settle cases and move onto the next one.
As he strode off the elevator from an early lunch and into the mahogany paneled, red carpeted foyer of his firm’s office, he glanced up at his name on the wall, partly with pride and partly just to make sure it was still there. He checked his phone messages and began to make his way back to his office when he was stopped by his secretary.
“Ben,” she called from her desk, “Your deposition tomorrow in the Evans case has been cancelled.”
The case of The Estate of Tammy Evans v. Anna Novak and James Morgan, involved the death of Tammy Evans as a result of a horrific car accident. The following day, the parties to the lawsuit were set to take a deposition of Anna Novak, who was Attorney Hogan’s client. These depositions had been on Attorney Hogan’s calendar for months waiting to be completed.
“Why?” Ben asked, not really caring and thinking more about all of the other work he could get done now that the next day had opened up.
Still typing away and not looking up, the secretary casually responded, “The other attorney’s office said something about him being called to cover a golf outing with a client. Did you want me to cancel your pre-deposition meeting with Ms. Novak?”
“No,” said Ben, “Don’t call her. We’ll just have her still come in so I can go over the case with her. That way, the next time these depositions are set up, I won’t have to waste as much time with her preparing. See if you can get the depositions rescheduled to take place in the next month or so.”
* * * * * *
Anna Novak was worried sick about her impending deposition set for the next day. Sitting at a table in the food court of the mall with her mother and baby, she stared at her lunch unable to eat. Anna was a slight girl of only twenty years of age who could not afford not to eat. The lines around her eyes betrayed her and gave her a worn, defeated look so early in life.
“What’s wrong?” her mother asked. Anna’s baby boy smiled up at them from his high chair.
“I have that supposition…er…deposition, or whatever it’s called, tomorrow in Tammy’s lawsuit. I have been dreading it for months and now it’s here. What’s worse is that I haven’t even heard from that freakin’ attorney from the insurance company. I mean, he sent some letters in the beginning and some written questions about the accident I had to fill out months ago, but since then, I haven’t heard squat.” Anna’s voice began to rise. “I don’t know what to expect tomorrow and it’s totally stressing me out! I haven’t been able to eat. I can’t sleep.” Tears welled up in Anna’s eyes.
“Okay, Okay,” her mom said softly, touching Anna’s hand. “I’m sure it’s nothing to worry about. You just go in there, tell the truth, and tell them what you can remember. Now calm down or you’re gonna upset the baby.”
“The accident happened three years ago!” Anna cried in exasperation. She took a breath, and, through tears, whispered, “I can’t remember everything that happened. All I can think about is Tammy. I killed her.”
It took all Anna had in her not to break down in front of the baby. “On top of all this, my boss at the diner is pissed because I have to come in late for work.”
A thought bolted into Anna’s head, “Oh! I totally forgot – Ma, you gotta’ babysit for me tomorrow morning when I go to this thing.”
Anna’s mom withdrew her hand from Anna’s. “Geez, Anna. I don’t know. I have a dental appointment. I don’t know if I’d be able to get another appointment that quickly.”
“Mom, you have to! There’s no one else to babysit on such short notice,” Anna said a little louder than she intended with the strain becoming more and more apparent in her voice. The baby began to cry.
“I said I will see what I can do,” her mother replied sharply, getting a bit frazzled herself.
* * * * * *
That same day, Attorney Hogan left the office early, hoping to shoot over to the softball field and get in some batting practice before the game. The local attorneys had gathered a team and joined a neighborhood softball league. For some of the older guys it was a chance to keep the dream alive of someday hitting a stand-up triple. Sadly, for most of these guys, slowed and jaded by age, that dream would never be realized. Most of them hadn’t seen the likes of third base since they were on a date at a drive-in movie back in high school.
Ben had joined the team as a way to blow off some steam after work. On this nice, summer night of softball, he had decided not to bring the Evans v. Novak file home, figuring he could skim through it in the morning just before his meeting with Anna Novak.
He took a seat on the small bleachers next to his buddy, Tommy Herzog, a criminal defense attorney. Tommy Herzog was just coming off a suspension of his license to practice law on account of “borrowing” money from his clients that he eventually paid back.
“Hey Ben, what’s up?” Tommy said as he passed Ben a beer.
“Not much. Same old, same old.”
“You busy?”
“Yeah, not crazy busy, but busy enough,” Ben responded. “There’s enough car accidents to go around.”
Tommy asked, “Whaddya’ got tomorrow?”
“Just another day,” Ben said, “Had a deposition in a death case tomorrow that was cancelled, so it’s sorta’ cleared my day up for me. Maybe we can do lunch.”
“Hmm. Did you call your client to tell them it was off?”
“Nah, I figured I’d have her come in and we’d go over the file a little to prepare for the next time it’s scheduled.” Ben tied up his spikes and took another slug from his ice cold beer.
Tommy looked at Ben and chuckled. “You didn’t call the client?”
“No….What?!” Ben asked, still not getting it.
“Man, your client’s probably nervous as hell, all worried about this thing.”
Ben smiled and still didn’t think anything of it. “Oh well, not much I can do about it now. Let’s go!” Ben picked up a bat and trotted to the plate for some swings before the game.
* * * * * *
That night Anna lay awake in bed crying, feeling alone and scared. The next day’s deposition was bringing back the terror of the car accident in full force.
The accident had happened on a perfect, spring night. Anna was driving her friend Tammy to a party. They were both set to graduate high school and the prom was only two weeks away. The girls had already planned a senior week at the shore following graduation. Then Tammy would soon be on her way to Cornell on a full ride to study to become a veterinarian. Anna, who had not done as well in high school, was planning to start at a local community college.
Everything changed in an instant. Anna had entered an intersection on a green light and slowed to make a left hand turn. She was changing the channel on the radio and chatting with Tammy, who was relaying their conversation to another friend on her cell phone. Laughter filled the car.
As Anna began her left turn, she suddenly realized that the oncoming pickup truck was closer and faster than she thought. Horrified, Anna felt adrenaline reach every cell in her body as she stomped on the gas to outrun the truck, but it was too late. The pickup truck slammed into the passenger side door, crushing Tammy and her dreams instantly. Anna was left with a broken body that eventually healed, flashbacks, and a lifetime of guilt.
* * * * * *
Getting home from the softball, Ben pulled his silver Jaguar into his circular driveway pleased with how he had played in the game. As he normally did after a game, Ben walked through the gate of the cedar wood fence that surrounded his two-story Tudor style home and trotted back to the pool area.
There he threw off his shirt, cleats, and socks and, to the shouts of “Daddy!,” dived into the deep end of the pool. He swam under the cool, refreshing water to the shallow end, climbed up the steps of the pool, and, dripping all the way, walked over to the patio table where he kissed his wife, Beverly, and his two young blonde haired daughters, Brittany and Brianna, who were waiting for him with a barbecue dinner.
“How was your day, dear?” his wife asked him while handing him an ice cold Corona (with a lime twist, of course). The bottle glistened with condensation on this muggy night.
“It was quiet,” Ben replied. “And tomorrow looks even better now that my deposition was cancelled.”
Ben enjoyed his dinner with his family and then took his daughters up for a little play time and a bath before they would be put to bed promptly at 8 p.m. After the kids were asleep, he enjoyed some quiet time watching T.V. with his wife and discussing the trip to the shore they had planned for the upcoming weekend. When Ben later went to
bed that evening after the news, it seemed as if he fell asleep as soon as his head hit the pillow.
* * * * * *
Anna eventually fell asleep around 3 a.m. only to have the baby’s cries wake her up at 3:30 a.m. After finally settling the baby back to sleep, Anna tossed and turned for a few more hours before getting up at dawn to get ready for her 9:30 a.m. meeting with Attorney Hogan.
Her mom had called the night before to indicate she switched her dental appointment and could babysit after all. Anna was so nervous that she left for Attorney Hogan’s office without eating as soon as her mother arrived at her apartment at around 8:30 a.m.
Anna arrived at the law office a half hour early for her appointment and was escorted to wait on a couch surrounded by months old, wrinkly magazines. Anna could barely breathe, her palms were wet, and she repeatedly fought back tears. To make matters worse, her appointment time of 9:30 a.m. came and went with no signs of Attorney Hogan. For twenty minutes she had continued to stare at the words of the same page of a Sports Illustrated she had absentmindedly picked up.
A little after 10 a.m., a tall man with dark wavy hair wearing a blue blazer, crisp khakis, and saddle shoes came off the elevator, strolled through the reception area and right past Anna without even looking at her. Ten minutes later, that same man walked back up to Anna, and with a fake, toothy grin, introduced himself as “Attorney Hogan,” shook her clammy hand, and invited her into a conference room.
When they sat down, Attorney Hogan opened up with, “You may be happy to know that your deposition has been continued.”
“Continued?” Anna asked. “What…what does that mean?”
“Uh, postponed,” Attorney Hogan replied. “We’re working on a new date now. I figured I’d still have you come in today anyway so we could prepare for it.”
Anna went numb. As Attorney Hogan droned on about the deposition process, he began to sound to Anna like the teacher from the Charlie Brown cartoons. Still unable to process the news that she would not be getting her deposition over and done with, Anna stared out the window longing for the meeting to end so she could flee and cry.
When the meeting finally ended about twenty minutes later, Attorney Hogan obliviously escorted Anna to the elevator and told her he’d let her know when the deposition was rescheduled. He never apologized and did not inquire of Anna what day or time would be convenient to her. Anna was still dazed as she stepped into the elevator and only half-heartedly waved good-bye to the smiling attorney. When the elevator door finally closed on Attorney Hogan’s office, Anna leaned against the wall, burst into tears, and hugged herself.
Attorney Hogan turned and whistled as he sauntered back to his office. He stopped and called out to his secretary, “Hey, call Tommy Herzog for me and see if he’s around for lunch.”
JUST ANOTHER DAY
by
DANIEL E. CUMMINS, ESQUIRE
For Attorney J. Benjamin Hogan III, life was good as long as he didn’t care too much. After fifteen years of practicing law, most of it spent defending insurance companies in all kinds of personal injury cases, Attorney Hogan believed he was just getting into the stride of his career. Without much effort, he had been made partner after seven years in a firm that was flourishing. Despite the current recession, there were plenty of car accidents to go around to justify his existence.
Attorney Hogan was tall and thin with broad shoulders, perfect for filling out the pin-striped double-breasted suits he was fond of wearing. He wore his jet black, wavy hair just a tad too long. On occasion, he would toy with wearing a pair of dark, rectangular reading glasses believing they gave him a more sophisticated look.
Ben, as he was known by his peers, liked to believe that he was a well respected civil litigator known for his good “people” skills. Yet, in recent years, he much preferred to simply deal with the papers stuffed in his many brown accordion style files as opposed to the various types of people who were his clients. In his career as a litigator, people had always been a nuisance who stood in the way of his ability to settle cases and move onto the next one.
As he strode off the elevator from an early lunch and into the mahogany paneled, red carpeted foyer of his firm’s office, he glanced up at his name on the wall, partly with pride and partly just to make sure it was still there. He checked his phone messages and began to make his way back to his office when he was stopped by his secretary.
“Ben,” she called from her desk, “Your deposition tomorrow in the Evans case has been cancelled.”
The case of The Estate of Tammy Evans v. Anna Novak and James Morgan, involved the death of Tammy Evans as a result of a horrific car accident. The following day, the parties to the lawsuit were set to take a deposition of Anna Novak, who was Attorney Hogan’s client. These depositions had been on Attorney Hogan’s calendar for months waiting to be completed.
“Why?” Ben asked, not really caring and thinking more about all of the other work he could get done now that the next day had opened up.
Still typing away and not looking up, the secretary casually responded, “The other attorney’s office said something about him being called to cover a golf outing with a client. Did you want me to cancel your pre-deposition meeting with Ms. Novak?”
“No,” said Ben, “Don’t call her. We’ll just have her still come in so I can go over the case with her. That way, the next time these depositions are set up, I won’t have to waste as much time with her preparing. See if you can get the depositions rescheduled to take place in the next month or so.”
* * * * * *
Anna Novak was worried sick about her impending deposition set for the next day. Sitting at a table in the food court of the mall with her mother and baby, she stared at her lunch unable to eat. Anna was a slight girl of only twenty years of age who could not afford not to eat. The lines around her eyes betrayed her and gave her a worn, defeated look so early in life.
“What’s wrong?” her mother asked. Anna’s baby boy smiled up at them from his high chair.
“I have that supposition…er…deposition, or whatever it’s called, tomorrow in Tammy’s lawsuit. I have been dreading it for months and now it’s here. What’s worse is that I haven’t even heard from that freakin’ attorney from the insurance company. I mean, he sent some letters in the beginning and some written questions about the accident I had to fill out months ago, but since then, I haven’t heard squat.” Anna’s voice began to rise. “I don’t know what to expect tomorrow and it’s totally stressing me out! I haven’t been able to eat. I can’t sleep.” Tears welled up in Anna’s eyes.
“Okay, Okay,” her mom said softly, touching Anna’s hand. “I’m sure it’s nothing to worry about. You just go in there, tell the truth, and tell them what you can remember. Now calm down or you’re gonna upset the baby.”
“The accident happened three years ago!” Anna cried in exasperation. She took a breath, and, through tears, whispered, “I can’t remember everything that happened. All I can think about is Tammy. I killed her.”
It took all Anna had in her not to break down in front of the baby. “On top of all this, my boss at the diner is pissed because I have to come in late for work.”
A thought bolted into Anna’s head, “Oh! I totally forgot – Ma, you gotta’ babysit for me tomorrow morning when I go to this thing.”
Anna’s mom withdrew her hand from Anna’s. “Geez, Anna. I don’t know. I have a dental appointment. I don’t know if I’d be able to get another appointment that quickly.”
“Mom, you have to! There’s no one else to babysit on such short notice,” Anna said a little louder than she intended with the strain becoming more and more apparent in her voice. The baby began to cry.
“I said I will see what I can do,” her mother replied sharply, getting a bit frazzled herself.
* * * * * *
That same day, Attorney Hogan left the office early, hoping to shoot over to the softball field and get in some batting practice before the game. The local attorneys had gathered a team and joined a neighborhood softball league. For some of the older guys it was a chance to keep the dream alive of someday hitting a stand-up triple. Sadly, for most of these guys, slowed and jaded by age, that dream would never be realized. Most of them hadn’t seen the likes of third base since they were on a date at a drive-in movie back in high school.
Ben had joined the team as a way to blow off some steam after work. On this nice, summer night of softball, he had decided not to bring the Evans v. Novak file home, figuring he could skim through it in the morning just before his meeting with Anna Novak.
He took a seat on the small bleachers next to his buddy, Tommy Herzog, a criminal defense attorney. Tommy Herzog was just coming off a suspension of his license to practice law on account of “borrowing” money from his clients that he eventually paid back.
“Hey Ben, what’s up?” Tommy said as he passed Ben a beer.
“Not much. Same old, same old.”
“You busy?”
“Yeah, not crazy busy, but busy enough,” Ben responded. “There’s enough car accidents to go around.”
Tommy asked, “Whaddya’ got tomorrow?”
“Just another day,” Ben said, “Had a deposition in a death case tomorrow that was cancelled, so it’s sorta’ cleared my day up for me. Maybe we can do lunch.”
“Hmm. Did you call your client to tell them it was off?”
“Nah, I figured I’d have her come in and we’d go over the file a little to prepare for the next time it’s scheduled.” Ben tied up his spikes and took another slug from his ice cold beer.
Tommy looked at Ben and chuckled. “You didn’t call the client?”
“No….What?!” Ben asked, still not getting it.
“Man, your client’s probably nervous as hell, all worried about this thing.”
Ben smiled and still didn’t think anything of it. “Oh well, not much I can do about it now. Let’s go!” Ben picked up a bat and trotted to the plate for some swings before the game.
* * * * * *
That night Anna lay awake in bed crying, feeling alone and scared. The next day’s deposition was bringing back the terror of the car accident in full force.
The accident had happened on a perfect, spring night. Anna was driving her friend Tammy to a party. They were both set to graduate high school and the prom was only two weeks away. The girls had already planned a senior week at the shore following graduation. Then Tammy would soon be on her way to Cornell on a full ride to study to become a veterinarian. Anna, who had not done as well in high school, was planning to start at a local community college.
Everything changed in an instant. Anna had entered an intersection on a green light and slowed to make a left hand turn. She was changing the channel on the radio and chatting with Tammy, who was relaying their conversation to another friend on her cell phone. Laughter filled the car.
As Anna began her left turn, she suddenly realized that the oncoming pickup truck was closer and faster than she thought. Horrified, Anna felt adrenaline reach every cell in her body as she stomped on the gas to outrun the truck, but it was too late. The pickup truck slammed into the passenger side door, crushing Tammy and her dreams instantly. Anna was left with a broken body that eventually healed, flashbacks, and a lifetime of guilt.
* * * * * *
Getting home from the softball, Ben pulled his silver Jaguar into his circular driveway pleased with how he had played in the game. As he normally did after a game, Ben walked through the gate of the cedar wood fence that surrounded his two-story Tudor style home and trotted back to the pool area.
There he threw off his shirt, cleats, and socks and, to the shouts of “Daddy!,” dived into the deep end of the pool. He swam under the cool, refreshing water to the shallow end, climbed up the steps of the pool, and, dripping all the way, walked over to the patio table where he kissed his wife, Beverly, and his two young blonde haired daughters, Brittany and Brianna, who were waiting for him with a barbecue dinner.
“How was your day, dear?” his wife asked him while handing him an ice cold Corona (with a lime twist, of course). The bottle glistened with condensation on this muggy night.
“It was quiet,” Ben replied. “And tomorrow looks even better now that my deposition was cancelled.”
Ben enjoyed his dinner with his family and then took his daughters up for a little play time and a bath before they would be put to bed promptly at 8 p.m. After the kids were asleep, he enjoyed some quiet time watching T.V. with his wife and discussing the trip to the shore they had planned for the upcoming weekend. When Ben later went to
bed that evening after the news, it seemed as if he fell asleep as soon as his head hit the pillow.
* * * * * *
Anna eventually fell asleep around 3 a.m. only to have the baby’s cries wake her up at 3:30 a.m. After finally settling the baby back to sleep, Anna tossed and turned for a few more hours before getting up at dawn to get ready for her 9:30 a.m. meeting with Attorney Hogan.
Her mom had called the night before to indicate she switched her dental appointment and could babysit after all. Anna was so nervous that she left for Attorney Hogan’s office without eating as soon as her mother arrived at her apartment at around 8:30 a.m.
Anna arrived at the law office a half hour early for her appointment and was escorted to wait on a couch surrounded by months old, wrinkly magazines. Anna could barely breathe, her palms were wet, and she repeatedly fought back tears. To make matters worse, her appointment time of 9:30 a.m. came and went with no signs of Attorney Hogan. For twenty minutes she had continued to stare at the words of the same page of a Sports Illustrated she had absentmindedly picked up.
A little after 10 a.m., a tall man with dark wavy hair wearing a blue blazer, crisp khakis, and saddle shoes came off the elevator, strolled through the reception area and right past Anna without even looking at her. Ten minutes later, that same man walked back up to Anna, and with a fake, toothy grin, introduced himself as “Attorney Hogan,” shook her clammy hand, and invited her into a conference room.
When they sat down, Attorney Hogan opened up with, “You may be happy to know that your deposition has been continued.”
“Continued?” Anna asked. “What…what does that mean?”
“Uh, postponed,” Attorney Hogan replied. “We’re working on a new date now. I figured I’d still have you come in today anyway so we could prepare for it.”
Anna went numb. As Attorney Hogan droned on about the deposition process, he began to sound to Anna like the teacher from the Charlie Brown cartoons. Still unable to process the news that she would not be getting her deposition over and done with, Anna stared out the window longing for the meeting to end so she could flee and cry.
When the meeting finally ended about twenty minutes later, Attorney Hogan obliviously escorted Anna to the elevator and told her he’d let her know when the deposition was rescheduled. He never apologized and did not inquire of Anna what day or time would be convenient to her. Anna was still dazed as she stepped into the elevator and only half-heartedly waved good-bye to the smiling attorney. When the elevator door finally closed on Attorney Hogan’s office, Anna leaned against the wall, burst into tears, and hugged herself.
Attorney Hogan turned and whistled as he sauntered back to his office. He stopped and called out to his secretary, “Hey, call Tommy Herzog for me and see if he’s around for lunch.”
Wednesday, October 28, 2009
Appeal to Pennsylvania Supreme Court Filed in Recent Monumental UIM Decision of Pusl v. Means
I recently reported on the monumental decision by the Pennsylvania Superior Court in the case of Pusl v. Means, 2009 WL 3065089 (Pa.Super. September 23, 2009, Judges Bowes, Freeburg, and Popovich).
The prevailing was defense counsel in the case, Craig E. Murphey from the Erie law firm of MacDonald, Illig, Jones & Britton. Attorneys Thomas A. McDonnell and Joseph A. Hudock of the Pittsburgh law firm of Summers McDonnell, Hudock, Guthrie & Skeel authored an amicus curiae brief for the defense at the request of the Pennsylvania Defense Institute.
Attorney Murphey has advised me that the Plaintiff in Pusl has filed a Petition for Allowance of Appeal to the Supreme Court on the issues presented. It remains to be seen whether the Supreme Court will agree to hear the case.
In Pusl v. Means, the Plaintiff was injured in a car accident and sued the tortfeasor. Before trial, the Plaintiff settled her UIM claim with her own insurer, State Farm, for its $75,000 policy limits. At the later trial against the tortfeasor, the Plaintiff secured a verdict of $100,000.
At the Defendant's request after the verdict in the lawsuit matter, the trial court molded the verdict down to reflect Pusl's recovery of UIM benefits for the same accident. The verdict was thereby reduced to $25,000.
In affirming the trial court's decision on appeal, the Superior Court reasoned that the lower court's decision was supported by 75 Pa.C.S. Section 1722 of the Motor Vehicle Financial Responsibility Law which recognizes the longstanding public policy against allowing Plaintiff's any double recoveries for the same loss.
The Superior Court rejected the plaintiff's claim that allowing the molding down of the verdict, or a set-off for previously received UIM benefits, was a violation of the collateral source rule.
Finally, the Court in Pusl also found that the decision does not offend the notion that a tortfeasor should have to pay for all losses he has caused because the UIM carrier could, if it wished, preserve its subrogation claim against that tortfeasor. In that regard, the defendant would still be responsible for the entire verdict while the Plaintiff was still precluded from recovering more than the amount the jury determines is necessary to compensate the plaintiff.
This decision has a great impact on the handling of automobile insurance litigation matters in Pennsylvania, and it will be interesting to see how the Supreme Court addresses the issue, assuming they agree to hear this appeal.
The prevailing was defense counsel in the case, Craig E. Murphey from the Erie law firm of MacDonald, Illig, Jones & Britton. Attorneys Thomas A. McDonnell and Joseph A. Hudock of the Pittsburgh law firm of Summers McDonnell, Hudock, Guthrie & Skeel authored an amicus curiae brief for the defense at the request of the Pennsylvania Defense Institute.
Attorney Murphey has advised me that the Plaintiff in Pusl has filed a Petition for Allowance of Appeal to the Supreme Court on the issues presented. It remains to be seen whether the Supreme Court will agree to hear the case.
In Pusl v. Means, the Plaintiff was injured in a car accident and sued the tortfeasor. Before trial, the Plaintiff settled her UIM claim with her own insurer, State Farm, for its $75,000 policy limits. At the later trial against the tortfeasor, the Plaintiff secured a verdict of $100,000.
At the Defendant's request after the verdict in the lawsuit matter, the trial court molded the verdict down to reflect Pusl's recovery of UIM benefits for the same accident. The verdict was thereby reduced to $25,000.
In affirming the trial court's decision on appeal, the Superior Court reasoned that the lower court's decision was supported by 75 Pa.C.S. Section 1722 of the Motor Vehicle Financial Responsibility Law which recognizes the longstanding public policy against allowing Plaintiff's any double recoveries for the same loss.
The Superior Court rejected the plaintiff's claim that allowing the molding down of the verdict, or a set-off for previously received UIM benefits, was a violation of the collateral source rule.
Finally, the Court in Pusl also found that the decision does not offend the notion that a tortfeasor should have to pay for all losses he has caused because the UIM carrier could, if it wished, preserve its subrogation claim against that tortfeasor. In that regard, the defendant would still be responsible for the entire verdict while the Plaintiff was still precluded from recovering more than the amount the jury determines is necessary to compensate the plaintiff.
This decision has a great impact on the handling of automobile insurance litigation matters in Pennsylvania, and it will be interesting to see how the Supreme Court addresses the issue, assuming they agree to hear this appeal.
Amicus Curiae Brief Filed on Behalf of Pennsylvania Defense Institute on Important Discovery Issue
I just authored and filed an amicus curiae brief at the request of and on behalf of the Pennsylvania Defense Institute in the Pennsylvania Superior Court Case of Gormley v. Edgar.
The main issue presented is whether the trial court correctly granted the Defendant’s motion to compel the Plaintiff’s compliance with securing the production in discovery of a pre-accident mental health evaluation report completed on the Plaintiff’s with regards to her prior emotional and mental condition in a case where the Plaintiff alleges severe and continuing emotional distress, anxiety, and mental anguish as a sole result of the motor vehicle accident which was the subject of the pending litigation.
Stated otherwise, the issue is whether the Plaintiff waived any asserted privilege against the disclosure of her pre-accident mental health records when she asserted claims of severe, disabling, and continuing emotional distress and mental anguish as part of her personal injury claim in a motor vehicle accident case.
It is anticipated that the Gormley case will be scheduled for oral argument in the near future. If you would like more information on this issue, please do not hesitate to contact me at dancummins@comcast.net.
The main issue presented is whether the trial court correctly granted the Defendant’s motion to compel the Plaintiff’s compliance with securing the production in discovery of a pre-accident mental health evaluation report completed on the Plaintiff’s with regards to her prior emotional and mental condition in a case where the Plaintiff alleges severe and continuing emotional distress, anxiety, and mental anguish as a sole result of the motor vehicle accident which was the subject of the pending litigation.
Stated otherwise, the issue is whether the Plaintiff waived any asserted privilege against the disclosure of her pre-accident mental health records when she asserted claims of severe, disabling, and continuing emotional distress and mental anguish as part of her personal injury claim in a motor vehicle accident case.
It is anticipated that the Gormley case will be scheduled for oral argument in the near future. If you would like more information on this issue, please do not hesitate to contact me at dancummins@comcast.net.
Tuesday, October 27, 2009
Recent Unpublished Northeastern Pennsylvania IME Cases of Note
I recently posted the article “Recurring Symptoms of IME’s: Independent medical examinations have given rise to many complex issues,” 30 Pennsylvania Law Weekly 475 (May 7, 2007) outlining recent caselaw on a wide variety of issues pertaining to IME.
The following additional, recent unpublished Northeastern Pennsylvania IME cases of note were brought to my attention by Attorney Marianne J. Gilmartin of the Scranton office of Stevens & Lee. I thank Attorney Gilmartin for sending these cases my way.
In the case of Monahan v. The Manitowoc Company, Inc., et al., No. 465 - Civil - 2005 (Luzerne County, November 2, 2007), then Judge Michael T. Conahan (ahem) issued an Order without any opinion addressing the issue of how far a plaintiff should have to travel to attend a multi-day neuropsychological IME.
The Order offered two alternatives: (1) that the plaintiff travel down to the Bryn Mawr, PA office of the expert by the plaintiffs own means or by means paid for by the Defendants, or (2) that the plaintiff attend one portion of the multi-day IME with the expert at the local office of the defense counsel, followed by attendance at a second day of testing at the expert's office in Bryn Mawr, PA either by the plaintiff's own means or by means paid for by the defense.
In the separate, more recent IME case of Chisarick v. Economic Development Council of NEPA, Civil Action No. 3:CV 06 0519 (M.D.Pa. April 17, 2009), Judge Thomas I. Vanaskie issued an Order without any opinion holding that the Plaintiff was precluded from being accompanied by his attorney or any other observer at an independent psychiatric evaluation (IPE).
According to the Defendant's Brief filed in Chisarick, the issue was governed by an application of Fed.R.C.P. 35, pertaining to physical and mental examination prior to trial. Unlike the similar Pennsylvania state Rule of Civil Procedure 4010 pertaining to expert examinations, Federal Rule 35 is silent on the issue of whether counsel or a representative of the plaintiff may be present during such examinations.
The defense brief argued that a majority of Federal decisions on the issue have ruled that the presence of counsel at an independent psychiatric evaluation would taint and/or obstruct the evaluation by causing a distraction, impeding communications and creating an overall adversarial atmosphere. See Shirsat v. Mutual Pharma. Co., 169 F.R.D. 68 (E.D.Pa. 1996); Neumerski v. Califano, 513 F.Supp. 1011 (E.D.Pa. 1981); but see Showell v. Trump Taj Mahal Casino, 2000 WL 1514108 (E.D.Pa. 2000)(Plaintiff's counsel allowed to attend IPE but only if he did not interrupt and sat silently behind his client).
As noted, Judge Vanaskie chose to follow what the defense termed was the majority rule and he precluded the attorney or any representative from attending the IPE with the Plaintiff in this matter.
The following additional, recent unpublished Northeastern Pennsylvania IME cases of note were brought to my attention by Attorney Marianne J. Gilmartin of the Scranton office of Stevens & Lee. I thank Attorney Gilmartin for sending these cases my way.
In the case of Monahan v. The Manitowoc Company, Inc., et al., No. 465 - Civil - 2005 (Luzerne County, November 2, 2007), then Judge Michael T. Conahan (ahem) issued an Order without any opinion addressing the issue of how far a plaintiff should have to travel to attend a multi-day neuropsychological IME.
The Order offered two alternatives: (1) that the plaintiff travel down to the Bryn Mawr, PA office of the expert by the plaintiffs own means or by means paid for by the Defendants, or (2) that the plaintiff attend one portion of the multi-day IME with the expert at the local office of the defense counsel, followed by attendance at a second day of testing at the expert's office in Bryn Mawr, PA either by the plaintiff's own means or by means paid for by the defense.
In the separate, more recent IME case of Chisarick v. Economic Development Council of NEPA, Civil Action No. 3:CV 06 0519 (M.D.Pa. April 17, 2009), Judge Thomas I. Vanaskie issued an Order without any opinion holding that the Plaintiff was precluded from being accompanied by his attorney or any other observer at an independent psychiatric evaluation (IPE).
According to the Defendant's Brief filed in Chisarick, the issue was governed by an application of Fed.R.C.P. 35, pertaining to physical and mental examination prior to trial. Unlike the similar Pennsylvania state Rule of Civil Procedure 4010 pertaining to expert examinations, Federal Rule 35 is silent on the issue of whether counsel or a representative of the plaintiff may be present during such examinations.
The defense brief argued that a majority of Federal decisions on the issue have ruled that the presence of counsel at an independent psychiatric evaluation would taint and/or obstruct the evaluation by causing a distraction, impeding communications and creating an overall adversarial atmosphere. See Shirsat v. Mutual Pharma. Co., 169 F.R.D. 68 (E.D.Pa. 1996); Neumerski v. Califano, 513 F.Supp. 1011 (E.D.Pa. 1981); but see Showell v. Trump Taj Mahal Casino, 2000 WL 1514108 (E.D.Pa. 2000)(Plaintiff's counsel allowed to attend IPE but only if he did not interrupt and sat silently behind his client).
As noted, Judge Vanaskie chose to follow what the defense termed was the majority rule and he precluded the attorney or any representative from attending the IPE with the Plaintiff in this matter.
Thursday, October 22, 2009
Products Liability: Pennsylvania Supreme Court Clarifies Burden of Proof in Malfunction Theory Case
In the recent October 2, 2009 case of Barnish v. KWI Building Co., 2009 WL 3161492 (Pa. 2009), the Pennsylvania Supreme Court unanimously clarified the burden of proof on a malfunction theory claim in a products liability action.
The case revolved around a spark detection device that was designed to detect sparks along a conveyor belt system through the use of multiple sensors.
On February 13, 2001, employees of one of the co-defendants were using a torch outside of the factory. Sparks allegedly entered the building through a gap in the wall and landed on the conveyor belt, which was transporting combustible materials. An explosion and fire killed two workers and injured others. Suit was brought against multiple defendants including the manufacturer of the spark detection device.
The Plaintiffs alleged that the sensors were defective under a strict products liability claim. However, the Plaintiffs were unable to present direct evidence of a defect in the sensors because the sensors were lost after the explosion. Therefore, the Plaintiffs attempted to proceed under the malfunction theory. Under this theory, the law allowed the Plaintiff to proceed on circumstantial evidence.
However, the Pennsylvania Supreme Court affirmed the decisions of the trial court and the Superior Court that the Plaintiff had failed to present sufficient circumstantial evidence to get beyond a summary judgment motion and proceed to the jury.
More specifically, the Supreme Court noted that although the Plaintiffs presented evidence of a malfunction and expert testimony that the injuries resulted from the malfunction, the Plaintiffs' failed to present required evidence, circumstantial or direct, that the product was defective at the time it left the manufacturer’s control.
The Court was influenced by the fact that the Plaintiffs failed to present any explanation as to how the sensors could function properly for ten years prior to the subject incident and yet be defective at the time the sensors left the manufacturer’s control. The court held that the Plaintiff’s acknowledgment of prior successful use of the device undermined the inference that the product was defective when it left the manufacturer’s control.
As such, the Court held that a plaintiff who admits that the product functioned properly in the past must present some evidence explaining how the product could be defective when it left the manufacturer’s control and yet still function properly for a period of time. As evidence of this kind was not produced by the Plaintiff in this matter, the Court affirmed the entry of summary judgment in favor of the manufacturer of the spark detection device.
According to a October 12, 2009 article, "Proving a Dormant Defect" by Peter Hall in the Pennsylvania Law Weekly commentators have viewed this decision as reinforcing the malfunction theory as a valid basis of recovery and as providing clarity on the burden of proof, particularly at the summary judgment stage, under that theory of recovery in products liability decisions.
The case revolved around a spark detection device that was designed to detect sparks along a conveyor belt system through the use of multiple sensors.
On February 13, 2001, employees of one of the co-defendants were using a torch outside of the factory. Sparks allegedly entered the building through a gap in the wall and landed on the conveyor belt, which was transporting combustible materials. An explosion and fire killed two workers and injured others. Suit was brought against multiple defendants including the manufacturer of the spark detection device.
The Plaintiffs alleged that the sensors were defective under a strict products liability claim. However, the Plaintiffs were unable to present direct evidence of a defect in the sensors because the sensors were lost after the explosion. Therefore, the Plaintiffs attempted to proceed under the malfunction theory. Under this theory, the law allowed the Plaintiff to proceed on circumstantial evidence.
However, the Pennsylvania Supreme Court affirmed the decisions of the trial court and the Superior Court that the Plaintiff had failed to present sufficient circumstantial evidence to get beyond a summary judgment motion and proceed to the jury.
More specifically, the Supreme Court noted that although the Plaintiffs presented evidence of a malfunction and expert testimony that the injuries resulted from the malfunction, the Plaintiffs' failed to present required evidence, circumstantial or direct, that the product was defective at the time it left the manufacturer’s control.
The Court was influenced by the fact that the Plaintiffs failed to present any explanation as to how the sensors could function properly for ten years prior to the subject incident and yet be defective at the time the sensors left the manufacturer’s control. The court held that the Plaintiff’s acknowledgment of prior successful use of the device undermined the inference that the product was defective when it left the manufacturer’s control.
As such, the Court held that a plaintiff who admits that the product functioned properly in the past must present some evidence explaining how the product could be defective when it left the manufacturer’s control and yet still function properly for a period of time. As evidence of this kind was not produced by the Plaintiff in this matter, the Court affirmed the entry of summary judgment in favor of the manufacturer of the spark detection device.
According to a October 12, 2009 article, "Proving a Dormant Defect" by Peter Hall in the Pennsylvania Law Weekly commentators have viewed this decision as reinforcing the malfunction theory as a valid basis of recovery and as providing clarity on the burden of proof, particularly at the summary judgment stage, under that theory of recovery in products liability decisions.
Tuesday, October 20, 2009
Property Insurance Coverage Case
In the case of Green Street Associates v. Erie Insurance Exchange, PICS No. 09-1737 (Phila. Co. 2009), a Philadelphia County Court of Common Pleas Judge Howland W. Abramson, after a two day bench trial, rejected four policy exclusions relied upon by Erie and ruled that Erie was required to provide coverage for water damage caused to a commercial building by a dislodged PVC pipe.
The facts revealed that a tenant in the building heard a loud bang and, upon investigating, found the pipe dislodged from the roof drain it was connected to. Rainwater pouring into the building from the roof. Evidence showed that .19 inches of rain fell over the 18 hours prior to the event but there was no rain falling during the 7 hours leading up to the event.
Erie insured the premises under an "Ultrasure Policy." The carrier sent out a forensic engineering expert to investigate on two occasions. He noticed rusting of the pipe and Erie initially denied coverage because the loss was caused by a drain fastener rusting away and, therefore, the loss was deemed to fall under the wear and tear exclusion. Erie also initially relied upon the rain exclusion.
By the time of trial, Erie also asserted that the loss fell under surface water exclusion and the deterioration exclusion as well.
Judge Abramson ruled that Erie failed to sustain its burden of proving the applicability of any of these exclusions. The rain exclusion and surface water exclusions were found inapplicable because it was not raining at the time of the loss. The remaining exclusions were also found inapplicable because, according to the Judge, there was no credible evidence that the stain on the pipe that became dislodged was rust as alleged and there was no credible evidence to show that the pipe became dislodged due to the rust or other wear and tear.
Anyone desiring a copy of this case may secure one from the Legal Intelligencer by calling 1-800-276-PICS, giving the PICS Case Number noted above, and paying a small fee.
I thank Attorney Gerry Connor of the Scranton, PA office of Margolis Edelstein for bringing this case to my attention.
The facts revealed that a tenant in the building heard a loud bang and, upon investigating, found the pipe dislodged from the roof drain it was connected to. Rainwater pouring into the building from the roof. Evidence showed that .19 inches of rain fell over the 18 hours prior to the event but there was no rain falling during the 7 hours leading up to the event.
Erie insured the premises under an "Ultrasure Policy." The carrier sent out a forensic engineering expert to investigate on two occasions. He noticed rusting of the pipe and Erie initially denied coverage because the loss was caused by a drain fastener rusting away and, therefore, the loss was deemed to fall under the wear and tear exclusion. Erie also initially relied upon the rain exclusion.
By the time of trial, Erie also asserted that the loss fell under surface water exclusion and the deterioration exclusion as well.
Judge Abramson ruled that Erie failed to sustain its burden of proving the applicability of any of these exclusions. The rain exclusion and surface water exclusions were found inapplicable because it was not raining at the time of the loss. The remaining exclusions were also found inapplicable because, according to the Judge, there was no credible evidence that the stain on the pipe that became dislodged was rust as alleged and there was no credible evidence to show that the pipe became dislodged due to the rust or other wear and tear.
Anyone desiring a copy of this case may secure one from the Legal Intelligencer by calling 1-800-276-PICS, giving the PICS Case Number noted above, and paying a small fee.
I thank Attorney Gerry Connor of the Scranton, PA office of Margolis Edelstein for bringing this case to my attention.
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