Senior Judge Thomson Addresses Spoliation Issue in Lackawanna County Slip and Fall Case

In his July 6, 2011 Opinion and Order in the Lackawanna County slip and fall case of Trently v. Giant Food Stores, LLC, No. 2008-CIV-3961 (Lacka. Co. July 6, 2011 Thomson, S.J.), Senior Judge Harold A. Thomson, Jr. denied the Defendant's Motion for Summary Judgment after finding genuine issues of material fact on the actual or constructive notice issue existed. 

The court also appeared to be influenced in its decision to deny the Defendant's motion given the Plaintiff's assertion of spoliation of evidence on the part of the Defendant given the possible failure of the defense to produce a surveillance videotape of the Plaintiff's incident.

Judge Thomson's Opinion gives a nice recitation of the current status of the law on the duties of store owners to its business invitees along with the standards applicable to actual or constructive notice evidence.

In this case, the Court noted that the Plaintiff allegedly slipped on a puddle of a brown substance that was located on the store's white floor in close proximity to the checkout counters where the store's cashiers were working.  Judge Thomson accepted the Plaintiff's argument that the motion for summary judgment was untimely in that there were still depositions of relevant witnesses to be completed, including the cashiers.  The Plaintiff also asserted that factual issues existed on the notice issue given the number of store employees that were in the vicinity of the fall at the time of the incident.

Judge Thomson also touched upon the law of spoliation and found that additional material factual issues existed in this regard in that there was evidence that the Defendant's store manager first indicated his belief that there was a videotape of the incident that was reviewed, yet later, it was learned that there was no tape in existence.

Based upon all of these issues, the court denied the Defendant store's motion for summary judgment and allowed the case to proceed.

Anyone desiring a copy of this Opinion by Judge Thomson in the case of Trently v. Giant Food Stores, LLC may contact me at dancummins@comcast.net.

I thank the prevailing Plaintiff's attorney, Thomas Holmes, Esquire of Scranton, Pennsylvania for bringing this decision to my attention.


Image from http://www.posigrip.blogspot.com/

Appellate Ruling That UIM Offset Includes Umbrella Policy Limits Stands

The Pennsylvania Supreme Court has denied allocatur in the two companion underinsured motorist cases of D'Adamo v. Erie Ins. Exchange and Holocher v. Erie Ins. Exchange, thereby allowing to stand a Superior Court panel's ruling that benefits collected under a tortfeasor's umbrella insurance policy can serve as an offset against the amount of recoverable underinsured motorist benefits in a given matter.

Source:  Article in August 9, 2011 Pennsylvania Law Weekly entitled "High Court Won't Mull Umbrella Policy Offsets in UIM Cases."

Here is a link to my prior Tort Talk post on an article of mine in which the D'Adamo case is summarized:  http://www.torttalk.com/2011/01/2010-year-end-review-article-on.html

Recent UM Coverage Decision By Judge Wettick of Allegheny County

In his recent Opinion in the case of Cubakovic v. GEICO, No. GD08-0004237 (Alleg. Co. April 6, 2011 Wettick, J.), Judge R. Stanton Wettick addressed a UM coverage issue that involved a construction of the definition of an "insured" under a GEICO insurance policy.

According to the Opinion, the Plaintiff, Brian Cubakovic, was injured while riding as a passenger in a rental vehicle driven by a Robert Veinovich.

At the time of the accident, the driver of the rental vehicle owned one vehicle that was insured by GEICO.  The Plaintiff himself owned a vehicle that was insured by State Farm.

Following the accident, the Plaintiff made a claim for UM coverage under the GEICO policy that covered the rental car driver's personal automobile.  Judge Wettick noted that if coverage was found, the GEICO policy would have been the primary coverage under the facts presented.

GEICO filed a motion for summary judgment asserting that its policy did not apply due to the definition of an insured found in the policy.  The Plaintiff and State Farm filed motions for summary judgment that coverage should apply.

Judge Wettick noted that the GEICO policy provided that GEICO would pay damages where the insured was legally entitled to recover from an uninsured driver.  An "insured" was defined in the policy, in pertinent part, as "any other person while occupying an owned auto."  [Emphasis added]. 

GEICO asserted that since the Plaintiff fell under the category of "any other person" under the terms of the policy, and since the Plaintiff was occupying a rental vehicle as opposed to an automobile "owned" by the GEICO insured, GEICO did not need to provide coverage.

The Plaintiff, however, pointed to language set forth in the Renewal Declarations of the policy which provided, as follows:

"As a GEICO Family Auto Policyholder, when you or your spouse (if residing with you) rents a car in the United States or Canada, the rental car is covered under your GEICO policy.  The same policy provisions and conditions, coverage limits and deductibles that apply to your personal car also apply to the rental car."

Judge Wettick construed this language to clearly state that any coverage provisions applicable to the insureds "personal" car also apply to the rental car.  He also rejected GEICO's contention that the policy deliberately used the term "personal car" rather than "owned auto" and that the two are not one and the same. 

In this regard, the court noted that there was no definition in the policy for "personal car" and that the term was not otherwise satisfactorily distinguished from the "owned auto" term.  Rather, in Judge Wettick's eyes the common meaning of a "personal car" would not cover a vehicle that a person did not own--as such the terms appeared to be interchangeable in this context.

The court also disagreed with GEICO's interpretation that the language of the Renewal Declarations was only referring to liability coverages and not UM coverages.

Finding the policy language at issue to be ambiguous, the court construed the terms in favor of the insured and against the insurer and found that the GEICO policy should provide the primary UM coverage under the facts presented.


Anyone desiring a copy of Judge Wettick's Opinion in the Cubakovic v. GEICO case may contact me at dancummins@comcast.net.

I thank the prevailing State Farm counsel, Attorney Tom McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Skeel, P.C. for bringing this decision to my attention.

REGISTER NOW TO SAVE YOUR SPOT - Seats Remain for August 24, 2011 CLE / Networking Event - Mohegan Sun Casino, Wilkes-Barre

CIVIL LITIGATION DEVELOPMENTS 2011

A CONTINUING LEGAL EDUCATION SEMINAR

 

Honoring John J. Aponick, Jr. & Thomas J. Foley, Jr.

for their 50 Years in Practice of Law

Sponsored by

THE PENNSYLVANIA DEFENSE INSTITUTE

and

THE NORTHEAST PENNSYLVANIA TRIAL LAWYERS ASSOCIATION

MOHEGAN SUN CASINO at POCONO DOWNS

Wednesday August 24, 2010

12:30 p.m. to 4:30 p.m.

2 Substantive & 1 Ethics CLE Credits

Immediately followed by Cocktail Reception at the Mohegan Sun Breakers Lounge

 

12:30 – 1:00 PM Registration

 

1:00 – 2:00 PM “TRIAL TIPS FROM THE LEGENDS”

John J. Aponick, Jr., Esq. – Marshall, Dennehey, Warner, Coleman & Goggin

Thomas J. Foley, Jr., Esq. – Foley, McLane, Foley, McDonald & MacGregor, P.C.

Moderator: Paul T. Oven, Esq. – Dougherty, Leventhal & Price

 

BREAK

 

2:15 – 2:45 PM “SOCIAL MEDIA DISCOVERY”

Melissa A. Scartelli, Esq. – Scartelli, Distasio & Kowalski, P.C.

Alicia C. Caridi, Esq. – Marshall, Dennehey, Warner, Coleman & Goggin

2:45 – 3:15 PM “CLAIMS REP PET PEEVES”

Daniel E. Cummins, Esq. – Foley, Cognetti, Comerford, Cimini & Cummins

Erin Rowan Meyers, Esq. – Claims Manager, Catholic Health Partners

BREAK

 

3:30 – 4:30 PM "ETHICAL PRACTICE POINTERS FROM THE BENCH"

Judge Correale F. Stevens – President Judge of Pennsylvania Superior Court

Judge Thomas Blewitt – Middle District Federal Magistrate Judge

Judge Thomas F. Burke, Jr. – President Judge of Luzerne County Court of Common Pleas

Judge Robert A. Mazzoni – Lackawanna County Court of Common Pleas Judge

Moderator: Michael A. Genello, Esq. – Murphy, Piazza & Genello, P.C.

Course Planners:

Matthew P. Keris, Esq. – Marshall, Dennehey, Warner, Coleman & Goggin

Daniel E. Cummins, Esq. – Foley, Cognetti, Comerford, Cimini & Cummins

 

Cost for the CLE/Happy Hour:

• Program for claim representatives/risk managers $25.00

• Program for paralegals $50.00

• CLE program for lawyers $175.00

 

For reservations, please print and complete the form below and return to PDI

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Name(s)_____________________________________________

 

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Make checks payable to:

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For more information, contact PDI at 800-734-0737

Post-Koken UIM Decision on Discovery Handed Down in Dauphin County

An article entitled "Dauphin County Judge Allows Discovery of UIM Claim Evaluation" and written by Ben Present that came out in the August 2, 2011 Pennsylvania Law Weekly is causing a stir across the Pennsylvania Auto Law Bar.

The article reports on a Order handed down by Dauphin County Judge Richard Lewis in the case of Welcomer v. Donegal Mut. Ins. Co., No. 2011-CV-474 (Dauphin Co. June 27, 2011 Lewis, J.) in which the court allowed the Plaintiff to pursue, over the defendant's objection, discovery from the UIM carrier in a post-Koken case regarding the UIM carrier's evaluation of the claim presented.  The court also allowed the Plaintiff to complete the deposition of the claims representative on the same issues.

The court ruled against the defense's primary position that the claims representative's notes on the evaluation were protected from disclosure under Pennsylvania Rule of Civil Procedure 4003.3 that precluded discovery of the mental impressions, conclusions, and opinions of a representative of the defendant regarding the merit or value of a claim or defense.  Finding that the information was relevant to the claims presented, the court allowed for the discovery.  It was reported that this case settled shortly after the Order was issued.

It is noted that the issue did not come before the court by way of any formal motion and was addressed informally by the parties in letter briefs and without any oral argument.

It is noted that a review of the letter briefs filed confirms that neither of the parties involved in the Welcomer case cited to any of the other decisions noted below on this issue from around the Commonwealth, which while not binding in Dauphin County, could have been relied upon by the Judge as persuasive authority on the issue of whether discovery of the bases of a carrier’s evaluation, as well as the carrier’s reserve information, was permissible.

For example, in the post-Koken case of Gunn v. Auto. Ins. Co. of Hartford, Conn., 2008 WL 6653070, GD07-Civil-002888 (Alleg. Co. July 25, 2008, Wettick, J.), and again in Wutz v. Smith and State Farm, 2009 WL 2920956, No. GD07-021766 (Alleg. Co. Sept. 9, 2009, Wettick, J.), both of which involved the different context of a breach of contract claim for UIM benefits combined with a bad faith claim, Judge R. Stanton Wettick of the Allegheny County Court of Common Pleas, who is considered to be the expert on the application of the rules of discovery to civil litigation matters in Pennsylvania, the court precluded the plaintiff’s efforts in discovery to secure the UIM carrier’s settlement evaluation information and reserve information until after the jury came back and issued a verdict in the initial trial on the UIM claim, which would then be followed by a bench trial on the bad faith claim.

In my estimation, a fair reading of Judge Wettick’s decisions leads to the conclusion that, if faced with only a breach of contract claim for UIM benefits that was not combined with a bad faith claim, Judge Wettick would likely rule that the discovery at issue was not permissible as the information sought was protected under the Rules of Civil Procedure which states that the mental impressions, opinions, and conclusions of representatives of a party are not discoverable, but rather, are privileged.

In a case out of Luzerne County, which I believe only involved a post-Koken breach of contract claim for UIM benefits and no bad faith claim, Judge Lewis W. Wetzel of the Luzerne County Court of Common Pleas also precluded this type of discovery in the case of Migatulski v. Eberis, et al., No. 7269-Civil-2006 (Luz. Co. Sept. 7, 2010, Wetzel, J.).

The viewpoint that there is ample authority against the allowance of discovery of a claims representative's notes on the UIM carrier's evaluation of the claim presented in post-Koken matters is also supported by those cases in which the trial courts have allowed the deposition of a claims representative to go forward with the proviso that the deposition questions may not pertain to those areas protected by the Rules of Civil Procedure pertaining to discovery, i.e. questions may not pertain to the representative's mental impressions, conclusions, or opinions regarding the merit or value of any claim or defense (Pa.R.C.P.4003.3).  See Paulewicz v. Fronczkewicz and State Farm, No. 10655 of 2009 Civil (Luz. Co. Feb. 1, 2010, Amesbury, J.)(In Order only, Court allows deposition of claims representative but precludes questions regarding mental impressions, conclusions or opinions regarding value of claim);  Liszka v. Ferro and GEICO, No. 109 - 2010 - Civil (Pike Co. March 20, 2011 Chelak, J.)(In an Opinion, Court denies motion for protective order by GEICO seeking to stop Plaintiff's deposition of claims representative; however, court cautions that deposition may only cover those areas allowed by Rules of Civil Procedure pertaining to discovery).










Anyone needing a copy of the above decisions may contact me at dancummins@comcast.net.  It is noted that there may also be other decisions out there on this issue that have not yet been publicized.

En Banc Rehearing in Tristani (DPW Lien Case) Denied

I recently reported on the case of Tristani v. Richman,  No. 09-3537, No. 09-3538 (3rd Cir. June 29, 2011 Sloviter, Hardiman, Pollak, J.) (Opinion by Hardiman) (Pollak, dissenting), in which the Third Circuit Court of Appeals upheld the right of the Pennsylvania Department of Public Welfare to pursue its lien in personal injury matters.  Here's a link to the Tort Talk post on that topic: 
http://www.torttalk.com/2011/06/third-circuit-court-of-appeals-upholds.html

I have been advised that the Petition for Rehearing En Banc in this case was denied last week.  I thank Attorney Patrick J. Loughren of the Pittsburgh law firm of Loughren, Loughren & Loughren PC for the update.

Judge Terrence R. Nealon of Lackawanna County Addresses Propriety of Pleadings in Complaint in Medical Malpractice Case

In his decision handed down last week in the medical malpractice case of Carroll v. Singh et al. No. 2011-CV-2528 (Lacka. Co. July 25, 2011 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed several issues raised by the Defendants in their Preliminary Objections to the Plaintiff's Complaint.

In this case, the Plaintiff underwent a laparoscopic gallbladder surgery, after which he had intense left arm pain. According to the operative report, during the surgery, “arm board restraints were noted for the right arm and…the left arm was tucked.” Following the surgery, the Plaintiff was eventually diagnosed with a brachial plexitis. This left arm condition allegedly worsened and the Plaintiff asserted in his Complaint that, due to improper positioning of his left arm during the surgery, he was caused to developed a brachial plexus injury and a related reflex sympathetic dystrophy

In this case, the Defendants objected to certain subparagraphs of the complaint as lacking sufficient specificity under Connor v. Allegheny General Hosp., 501 Pa. 306, 311 n. 3, 461 A.2d 600, 603 n. 3 (1983). The Defendants also sought to strike the Plaintiff’s allegations of “recklessness” based upon the facts alleged in the Complaint. The Defendants additionally requested the court to strike the Plaintiff’s agency allegations on the ground that Carroll had not specifically identified all individuals who purportedly acted as agents or employees of the Defendant's respective offices.

With regards to the Defendant’s Connor Preliminary Objections, the Court sustained the Objections in part and denied them in part. With regards to those allegations in the Complaint that were found to be possibly not specific enough, Judge Nealon followed the practice in the Lackawanna County Court of Common Pleas of allowing the Plaintiff to conduct discovery within a limited period of time to seek out information to make such allegations more specific by way of an amendment to the Complaint. The Court noted that if the Plaintiff was unable to make the allegations at issue more specific they would be stricken from the Complaint.

With regards to the allegations of reckless conduct asserted against the Defendants, the Court found that the factual allegations only amounted to ordinary negligence claims. Judge Nealon also noted that there were no specific requests for punitive damages noted anywhere in the Complaint. As such, the allegations of recklessness were stricken from the Complaint from the Complaint.

On the agency issue, Judge Nealon provided a thorough review of the case law on the requirements of proper pleading in this regard. He then took the same approach of allowing the Plaintiff a limited amount of time to conduct discovery on the agency issue to determine if the allegations could be made more specific in terms of the identities of the medical personnel involved. If information was discovered, the Complaint could be amended and made more specific; otherwise, such allegations would be stricken from the Complaint as not specific enough under the Rules of Civil Procedure pertaining to pleading.

Anyone desiring a copy of Judge Nealon’s opinion in the case of Carroll v. Singh, et al. may contact me at dancummins@comcast.net.