According to an April 8, 2010 Associated Press release, the United States Third Circuit Court of Appeals has upheld the insurance fraud conviction and 46-month prison sentence of former Pennsylvania Superior Court Judge, Michael Joyce.
The three-judge panel from the Third Circuit Court of Appeals found that a jury could reasonably infer that the defendant meant to defraud Erie Insurance on the personal injury claims presented because of the defendant's "numerous exaggerations and misstatements" about neck and back injuries he allegedly suffered in an August 2001 automobile accident.
According to the article, the former judge was convicted of mail fraud and money laundering in 2008 and sentenced in March of 2009 for collecting $440,000 in an allegedly low-speed accident during which his vehicle was rear-ended. The 61-year-old former judge has been serving his sentence during the appeal.
Thursday, April 8, 2010
Wednesday, April 7, 2010
Lackawanna County Judge Terrence Nealon Addresses Declaratory Judgment Issues
In his recent March 29, 2010 Opinion and Order issued in the case of C.S. Individually, and as parent and Natural Guardian of M.S., a minor, et al. v. Colony Insurance Company, et al, No. 05 CV 569 (Consolidated) (Lacka. Co. 2010 Nealon, J.), Lackawanna County Court of Common Pleas Judge Terrence Nealon succinctly set forth the law pertaining to declaratory judgment actions and the rationale supporting the refusal of courts to give advisory opinions in such cases.
In M.L. v. Colony Insurance Company, four juveniles filed tort actions naming the Juvenile Rehabilitation Services, Inc. ("JRS") as a defendant. It was alleged in the underlying action that the juveniles sustained various personal injuries as result of being placed into the foster care of a man who was a transvestite who impersonated himself as a female who was purportedly married to another man at the time of the foster care placements. While the juveniles were in the individual defendant's foster care, they were sexually abused in a graphic manner. The foster parent eventually pleaded guilty to a number of sexual offenses and was sent to prison.
The juveniles sued JRS under the primary allegations that the defendant failed to conduct proper background checks and, after placement, failed to conduct periodic reviews and inspections to ensure the safety of the minors.
JRS was covered by a primary liability policy as well as an excess liability policy. Under the primary liability policy issued by Colony Insurance Company, there was medical incident coverage with $1 million per claim/$3 million per incident limits and a separate sexual abuse coverage with a $100,000 per claim/$100,000 per incident limit.
The juvenile Plaintiffs filed a declaratory judgment action seeking an adjudication that the facts of the case fell under the higher liability coverage. In this case before Judge Nealon, the juvenile Plaintiffs had filed a certificate of trial readiness in the declaratory judgment action while the underlying third party litigation was still pending and had not yet been tried.
The Defendant primary liability carrier motioned to Judge Nealon to strike the certificate of readiness, arguing that the scope of the duty to indemnify under the policy could not be properly determined until the underlying tort actions had been decided by a jury. More particularly, the carrier argued that the declaratory judgment action on the issue of the applicable coverage could not be decided until a jury in the underlying third party matter issued a verdict on whether the juveniles' injuries were caused solely by the sexual abuse or by the other alleged actions of JRS.
After thoroughly reviewing the law of declaratory judgments and the prohibition against advisory opinions in such cases, Judge Nealon ruled that any declaration by the court on the carrier's duty to indemnify would be premature and merely advisory prior to the resolution of the tort lawsuit against JRS. As such, Judge Nealon granted the carrier's motion to strike the juvenile Plaintiffs trial certification of the declaratory judgment actions without prejudice to the Plaintiffs' right to re-certify the case after the disposition of the underlying lawsuit.
Anyone desiring a copy of Judge Nealon's Opinion and Order may contact me at dancummins@comcast.net.
In M.L. v. Colony Insurance Company, four juveniles filed tort actions naming the Juvenile Rehabilitation Services, Inc. ("JRS") as a defendant. It was alleged in the underlying action that the juveniles sustained various personal injuries as result of being placed into the foster care of a man who was a transvestite who impersonated himself as a female who was purportedly married to another man at the time of the foster care placements. While the juveniles were in the individual defendant's foster care, they were sexually abused in a graphic manner. The foster parent eventually pleaded guilty to a number of sexual offenses and was sent to prison.
The juveniles sued JRS under the primary allegations that the defendant failed to conduct proper background checks and, after placement, failed to conduct periodic reviews and inspections to ensure the safety of the minors.
JRS was covered by a primary liability policy as well as an excess liability policy. Under the primary liability policy issued by Colony Insurance Company, there was medical incident coverage with $1 million per claim/$3 million per incident limits and a separate sexual abuse coverage with a $100,000 per claim/$100,000 per incident limit.
The juvenile Plaintiffs filed a declaratory judgment action seeking an adjudication that the facts of the case fell under the higher liability coverage. In this case before Judge Nealon, the juvenile Plaintiffs had filed a certificate of trial readiness in the declaratory judgment action while the underlying third party litigation was still pending and had not yet been tried.
The Defendant primary liability carrier motioned to Judge Nealon to strike the certificate of readiness, arguing that the scope of the duty to indemnify under the policy could not be properly determined until the underlying tort actions had been decided by a jury. More particularly, the carrier argued that the declaratory judgment action on the issue of the applicable coverage could not be decided until a jury in the underlying third party matter issued a verdict on whether the juveniles' injuries were caused solely by the sexual abuse or by the other alleged actions of JRS.
After thoroughly reviewing the law of declaratory judgments and the prohibition against advisory opinions in such cases, Judge Nealon ruled that any declaration by the court on the carrier's duty to indemnify would be premature and merely advisory prior to the resolution of the tort lawsuit against JRS. As such, Judge Nealon granted the carrier's motion to strike the juvenile Plaintiffs trial certification of the declaratory judgment actions without prejudice to the Plaintiffs' right to re-certify the case after the disposition of the underlying lawsuit.
Anyone desiring a copy of Judge Nealon's Opinion and Order may contact me at dancummins@comcast.net.
Postponement of Medicare Secondary Payer Mandatory Reporting Until Jan. 1, 2011.
According to an April 5, 2010 online article by an Attorney Kathy Donovan for Claims magazine, the Centers for Medicare and Medicaid Services (CMS) recently announced that the planned April 1, 2010 implementation of the Medicare Secondary Payer Mandatory Reporting (MSP) has been pushed back to January 1, 2011.
It was indicated that this postponement of the pending federal reporting requirement enables insurance companies the opportunity to learn more about the process and prepare for the implementation of the statutory changes.
According to the article, the delay only affects non-group health plan insurers (NGHP), which are defined in the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA) as being an “applicable plan” for liability insurance (including self-insurance), no-fault insurance, and workers’ compensation insurance. Included in this group are liability carriers who are dealing with an injured party who may be a Medicare beneficiary
The article further notes that, the implementation of the statutory requirements was delayed, in part, address the insurance industry's need for additional guidance on the applicably requirements and the procedures.
In addition to reviewing some revisions that are anticipated in a Congressional Bill entitled the Medicare Secondary Payer Enhancement Act of 2010, Attorney Donovan notes in her article that up-to-date information about the clarification of existing requirements and guidelines and available assistance can be accessed on the CMS site.
Attorney Donovan's complete article can be viewed by clicking on this link: http://www.claimsmag.com/Exclusives/2010/4/Pages/Medicare-Claim-Reporting-Delay-Provides-Opportunities-for-Casualty-Insurers.aspx.
It was indicated that this postponement of the pending federal reporting requirement enables insurance companies the opportunity to learn more about the process and prepare for the implementation of the statutory changes.
According to the article, the delay only affects non-group health plan insurers (NGHP), which are defined in the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA) as being an “applicable plan” for liability insurance (including self-insurance), no-fault insurance, and workers’ compensation insurance. Included in this group are liability carriers who are dealing with an injured party who may be a Medicare beneficiary
The article further notes that, the implementation of the statutory requirements was delayed, in part, address the insurance industry's need for additional guidance on the applicably requirements and the procedures.
In addition to reviewing some revisions that are anticipated in a Congressional Bill entitled the Medicare Secondary Payer Enhancement Act of 2010, Attorney Donovan notes in her article that up-to-date information about the clarification of existing requirements and guidelines and available assistance can be accessed on the CMS site.
Attorney Donovan's complete article can be viewed by clicking on this link: http://www.claimsmag.com/Exclusives/2010/4/Pages/Medicare-Claim-Reporting-Delay-Provides-Opportunities-for-Casualty-Insurers.aspx.
SAVE THE DATE - FRIDAY, MAY 28th - NEPTLA FAMILY NIGHT AT THE BALL GAME
Family Night at the Ball Game
Presented by
Northeast Pennsylvania Trial Lawyers Association
Friday May 28, 2010
Scranton/Wilkes-Barre Yankees
v.
Syracuse Chiefs
Luxury Box
Buffet Dinner beginning at 6:00 PM
Beer and soft drinks provided
Game starts at 7:05 PM
Post-Game Fireworks
Adults -- $20.00
Children under 12 -- $12.00
Children under six are free!!
For ticket information or questions please contact:
Dan Cummins
Foley, Cognetti, Comerford, Cimini, & Cummins
507 Linden Street, Suite 700
Scranton, PA 18503
(570) 346-0745
dancummins@comcast.net
Please make checks payable to “Northeastern Pennsylvania
Trial Lawyers Association” and send to Dan Cummins
Presented by
Northeast Pennsylvania Trial Lawyers Association
Friday May 28, 2010
Scranton/Wilkes-Barre Yankees
v.
Syracuse Chiefs
Luxury Box
Buffet Dinner beginning at 6:00 PM
Beer and soft drinks provided
Game starts at 7:05 PM
Post-Game Fireworks
Adults -- $20.00
Children under 12 -- $12.00
Children under six are free!!
For ticket information or questions please contact:
Dan Cummins
Foley, Cognetti, Comerford, Cimini, & Cummins
507 Linden Street, Suite 700
Scranton, PA 18503
(570) 346-0745
dancummins@comcast.net
Please make checks payable to “Northeastern Pennsylvania
Trial Lawyers Association” and send to Dan Cummins
Recent Settlement in Northeastern Pennsylvania Trucking Accident Case
The following settlement in a Northeastern Pennsylvania trucking accident case was recently reported in the Legal Intelligencer and the Pennsylvania Law Weekly.
Case name:
HELEN and ANTHONY GROSEK, JR. v. PANTHER II TRANSPORTATION, INC., PANTHER EXPEDITED SERVICES, INC. and ANTHONY L. SANDERS a/k/a TONY L. SANDERS
Court name & docket number:
United States District Court for the Middle District of Pennsylvania
No. 3:CV 1592
Judge:
James Munley
Attorneys:
For Plaintiffs: Richard A. Russo, Esquire and Andrew Bigda, Esquire of Rosenn, Jenkins & Greenwald in (Wilkes-Barre)
For Defendants: Thomas Kuzmick and Valerie Kellner of Rawle & Henderson (Philadelphia)
Insurance carrier: Zurich Insurance
Facts:
In May of 2007, a tractor trailer allegedly failed to stop for a red traffic light at a four way intersection, allegedly resulting in a collision with a car driven by a retired 83 year old woman. The primary injuries alleged were a traumatic brain injury and numerous broken bones.
The truck driver denied running a red light, and claimed that his traffic light changed to yellow as he was about to enter the intersection. Plaintiffs alleged that the truck driver was reckless and negligent for failing to stop at a red traffic signal, and the trucking company was vicariously liable for the driver's conduct.
In addition to a claim for compensatory damages, the suit included a claim against the trucking company for vicarious punitive damages due to the driver’s alleged reckless indifference to the safety of others as a result of his never having braked for an obvious red light.
Plaintiffs’ Experts:
Dr. W. Fred Hess (orthopedic surgeon), Danville, PA
Dr. Jonathan P. Hosey (neurologist), Danville, PA
Mona G. Yudkoff (life care planner), Bala Cynwyd, PA
Christina Kelly (trucking expert), Indianapolis, IN
Lance E. Robson (professional engineer), Eagle’s Mere, PA
Dr. Jonathan A. Cunitz (financial expert for punitive damages) Westport, CT
Defendants’ Experts:Dr. Thomas DiBenedetto (orthopedic surgeon), Allentown, PA
Dr. Richard Bennett (neurologist), Philadelphia, PA
Hugh Galbreath: (trucking expert), Morristown, IN
Suzanne Salmon (life care planner), Philadelphia, PA
Result: The case settled at trial for $3 million after opening statements were made to the jury.
Case name:
HELEN and ANTHONY GROSEK, JR. v. PANTHER II TRANSPORTATION, INC., PANTHER EXPEDITED SERVICES, INC. and ANTHONY L. SANDERS a/k/a TONY L. SANDERS
Court name & docket number:
United States District Court for the Middle District of Pennsylvania
No. 3:CV 1592
Judge:
James Munley
Attorneys:
For Plaintiffs: Richard A. Russo, Esquire and Andrew Bigda, Esquire of Rosenn, Jenkins & Greenwald in (Wilkes-Barre)
For Defendants: Thomas Kuzmick and Valerie Kellner of Rawle & Henderson (Philadelphia)
Insurance carrier: Zurich Insurance
Facts:
In May of 2007, a tractor trailer allegedly failed to stop for a red traffic light at a four way intersection, allegedly resulting in a collision with a car driven by a retired 83 year old woman. The primary injuries alleged were a traumatic brain injury and numerous broken bones.
The truck driver denied running a red light, and claimed that his traffic light changed to yellow as he was about to enter the intersection. Plaintiffs alleged that the truck driver was reckless and negligent for failing to stop at a red traffic signal, and the trucking company was vicariously liable for the driver's conduct.
In addition to a claim for compensatory damages, the suit included a claim against the trucking company for vicarious punitive damages due to the driver’s alleged reckless indifference to the safety of others as a result of his never having braked for an obvious red light.
Plaintiffs’ Experts:
Dr. W. Fred Hess (orthopedic surgeon), Danville, PA
Dr. Jonathan P. Hosey (neurologist), Danville, PA
Mona G. Yudkoff (life care planner), Bala Cynwyd, PA
Christina Kelly (trucking expert), Indianapolis, IN
Lance E. Robson (professional engineer), Eagle’s Mere, PA
Dr. Jonathan A. Cunitz (financial expert for punitive damages) Westport, CT
Defendants’ Experts:Dr. Thomas DiBenedetto (orthopedic surgeon), Allentown, PA
Dr. Richard Bennett (neurologist), Philadelphia, PA
Hugh Galbreath: (trucking expert), Morristown, IN
Suzanne Salmon (life care planner), Philadelphia, PA
Result: The case settled at trial for $3 million after opening statements were made to the jury.
Monday, April 5, 2010
A Weekend in Our Nation's Capital
I am going to digress from the ordinary topics of Tort Talk to tell you a little about a great Easter Weekend trip I took to Washington, D.C. with my family. The trip reminded me of the important place attorneys have in our Nation's history and rejuvenated in me a sense that we are indeed a part of a noble profession that is an integral part of shaping society as we know it.
The weather was incredible and the Cherry Blossoms were blooming. Although we were told that the city was flooded with hundreds of thousands of tourists, the sites are so spread out that it didn't really seem overcrowded.
We enjoyed the usual but awe-inspiring sites such as the Capitol Building, the Washington Monument, and the Lincoln Memorial. Seeing the Vietnam Veterans Memorial and Arlington National Cemetery gave us a chance to explain to our boys the importance of what others had previously done for us so that we can enjoy the freedoms that we do on a daily basis. A tour guide explained to us that the Arlington National Cemetery may be nearing capacity in a few years, particularly in light of the ongoing Iraq and Afghanistan conflicts, which was sad to hear--made everything seem more real.
On another day, we went to see the Supreme Court Building, pictured below. Spent time explaining to my boys that this was the home to the highest Court in the land. They lost interest when I went into a discussion of judicial activism versus strict constructionism.
The weather was incredible and the Cherry Blossoms were blooming. Although we were told that the city was flooded with hundreds of thousands of tourists, the sites are so spread out that it didn't really seem overcrowded.
We enjoyed the usual but awe-inspiring sites such as the Capitol Building, the Washington Monument, and the Lincoln Memorial. Seeing the Vietnam Veterans Memorial and Arlington National Cemetery gave us a chance to explain to our boys the importance of what others had previously done for us so that we can enjoy the freedoms that we do on a daily basis. A tour guide explained to us that the Arlington National Cemetery may be nearing capacity in a few years, particularly in light of the ongoing Iraq and Afghanistan conflicts, which was sad to hear--made everything seem more real.
On another day, we went to see the Supreme Court Building, pictured below. Spent time explaining to my boys that this was the home to the highest Court in the land. They lost interest when I went into a discussion of judicial activism versus strict constructionism.
I had a sense or a feeling of the awesome power of things in Washington when we saw Marine One, the President's helicopter, fly overhead towards the White House. Don't know if the President was on it but it was cool to see.
We also got to see original documents in the National Archives that started this legal business of ours, including the Declaration of Independence, the United States Constitution, and the Bill of Rights. Simply incredible to see the real documents from which all other laws emanate.
I had a somewhat difficult but enjoyable time trying to explain the significance of the documents to my boys and their ongoing impact on society over 200 years since they were drafted (primarily by lawyers). Again, the trip and explaining things to my kids was a great reminder of the importance of the law and the nobility of our profession.
My family and I topped off the weekend by participating in the Annual Easter Egg Roll on Easter Monday on the White House grounds! Prior to our trip, we put in for the lottery to get tickets for this event. We read that over 270,000 applications were submitted for tickets from all around the country. My family and I were just a few of the 30,000 people who were awarded tickets. Unbelievable.
We were let onto the White House grounds, under heavy security, in five time-separated groups of about 6,000 people at a time. We were allowed two hours to mill about the various activities offered. The grounds of the White House are so sprawling that it again did not seem to be overcrowded.
We participated in the Easter Egg Roll which has been going on every Easter since the late 1800s and so we were a part of history. We also visited various arts and crafts exhibits and enjoyed the entertainment provided. There were some teeny-bopper acts that I was not familiar with, the movie star Reese Witherspoon was doing storybook time, and we also saw the cast of the TV show "Glee" put on a half hour show.
We were not fortunate to see the President or the First Lady during our time on the grounds. But we did get to wander about on the lawn up to about only 20-30 yards from the main building of the White House and we were only about 150 yards away from where the Oval Office was situated. I couldn't believe it--truly a memory my family and I will remember forever.
How many people can say they wandered the White House grounds this close to the White House itself?
Thursday, April 1, 2010
Update Regarding Reporting of Recent Defense Verdict in Columbia County Medical Malpractice Case
Here is an update in regard to article about defense verdict in case of Kowalski vs Bloomsburg Hospital and Dr. Meloy out of Columbia County. It was learned from public sources that the case against Hospital was discontinued for reasons that are confidential and that the plaintiffs proceeded with the case at trial only against the physician defendant. No evidence was introduced by the Plaintiffs against the Hospital Defendant at trial but the verdict slip required the jury to assess the negligence claims against both Defendants for comparative negligence purposes.
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