Caserta v. GEICO General Ins. Co., 2012 WL 6604613 (3d Cir. Dec. 19, 2012) (Scirica, Roth, and Barry, JJ.)(not selected for publication in the Federal Reporter)(boyfriend/girlfriend relationship does not satisfy the 3rd element ("closely related") for a bystander claim for negligent infliction of emotional distress; since the "closely related" element was not met, the court did not rule on whether the claimant would have been able to recover for such a claim under her boyfriend's mother's auto policy; court also ruled that girlfriend cannot recover for her own bodily injuries from her boyfriend's mother's policy because she does not meet the policy definition of an "insured")
The Tort Talk synopsis on the lower court's decision in Caserta can be viewed HERE.
Here is a LINK to that Third Circuit's decision in Caserta v. GEICO.
I sent thanks to Attorney Bill Mabius of the Pennsylvania Association for Justice for bringing this case to my attention.
Monday, January 14, 2013
Wednesday, January 9, 2013
Notice of Change to Household Exclusion Required
In the Lawrence County case of Oesterling v. Allstate Ins. Co., No. 11429 of 2008 (C.P. Lawrence Co. Dec. 17, 2012 Piccione, J.), the court addressed the applicability of a household exclusion which was added to a policy several years after the policy was initially purchased.
Allstate Insurance Company brought the matter before the court by way of a Motion for Summary Judgment which was denied by the court.
At the time of the accident, the injured party was operating a scooter that was involved in an accident with another vehicle. The injured party recovered from the tortfeasor and from the separate UIM carrier that covered the scooter. When the injured party turned to Allstate, which covered other vehicles owned by the injured party, Allstate denied coverage on the grounds of the household exclusion in the policy given that the scooter was not covered under the injured party's policy with Allstate.
In response, the Plaintiff argued that he was not notified by Allstate of a change in the policy terms after it was originally purchased by the Plaintiff.
In denying Allstate's Motion for Summary Judgment, the Oesterling court ruled that the exclusion clearly applied but that if the change in the policy was a material change, it must be shown that the insured was put on notice of the change by the carrier.
As such, the court ruled in this matter that a jury would decide whether a change in wording to household exclusion that was made to the auto policy several years after the policy was initially purchased constituted a material alteration of coverage. If so, Allstate had the burden to notify the insured of the change to ensure that he understood and accepted it.
However, if the jury determined that the household exclusion was of a type that was typical of such a policy then the insured would have had the burden to read and understand his policy.
These were the disputed issues of fact that the court left for the jury to decide.
Anyone desiring a copy of this Oesterling v. Allstate case may click this LINK.
I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer, as well as Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this case to my attention.
Allstate Insurance Company brought the matter before the court by way of a Motion for Summary Judgment which was denied by the court.
At the time of the accident, the injured party was operating a scooter that was involved in an accident with another vehicle. The injured party recovered from the tortfeasor and from the separate UIM carrier that covered the scooter. When the injured party turned to Allstate, which covered other vehicles owned by the injured party, Allstate denied coverage on the grounds of the household exclusion in the policy given that the scooter was not covered under the injured party's policy with Allstate.
In response, the Plaintiff argued that he was not notified by Allstate of a change in the policy terms after it was originally purchased by the Plaintiff.
In denying Allstate's Motion for Summary Judgment, the Oesterling court ruled that the exclusion clearly applied but that if the change in the policy was a material change, it must be shown that the insured was put on notice of the change by the carrier.
As such, the court ruled in this matter that a jury would decide whether a change in wording to household exclusion that was made to the auto policy several years after the policy was initially purchased constituted a material alteration of coverage. If so, Allstate had the burden to notify the insured of the change to ensure that he understood and accepted it.
However, if the jury determined that the household exclusion was of a type that was typical of such a policy then the insured would have had the burden to read and understand his policy.
These were the disputed issues of fact that the court left for the jury to decide.
Anyone desiring a copy of this Oesterling v. Allstate case may click this LINK.
I send thanks to Attorney Scott Cooper of the Harrisburg, PA law firm of Schmidt Kramer, as well as Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price for bringing this case to my attention.
Corrected Link to Hopkins v. Erie - UIM Statute of Limitations case
I am hoping this LINK will take you to the Hopkins v. Erie Ins. case reported here a few days ago regarding the statute of limitations in a UIM case. Sorry for that the previous link did not work.
Thanks.
Thanks.
Monday, January 7, 2013
UIM Statute of Limitations Case
In the Montgomery County Court of Common Pleas Opinion of Hopkins v. Erie Insurance Company, No. 2010 - CV - 35352 (C.P. Montg. Co. Aug. 12, 2012 Carluccio, J.), Judge Carolyn T. Carluccio addressed the issue of the proper statute of limitation for a underinsured (UIM) claim.
This matter came before the court by way of the Plaintiff's Petition for the Appointment of Arbitrators and Request to Compel Arbitration. The Plaintiff had previously settled her claim against the tortfeasor in June of 2004.
According to the opinion, while the Plaintiff notified the carrier of the settlement at that time by letter and advised the carrier in that letter that she wished to pursue a UIM claim, the Plaintiff took no further action with respect to the UIM carrier other than submitting a demand letter in 2008. The opinion noted that, in addition to the Claimant's counsel speaking with an Erie claims representative about issues pertaining to an arbitration of the matter, Erie also requested medical records and authorizations from the Plaintiff. The opinion confirms that executed authorizations were provided to Erie, some of which were sent out by the carrier to request records.
In March of 2009, the carrier issued a letter to the insured advising that it was closing its file on the basis that the statute of limitations on the UIM claim had passed. The Plaintiff responded by filing the Motion at issue. That Motion was denied and an appeal filed, triggering the issuance of this Pa.R.A.P. 1925 Opinion from the trial court explaining its reasoning for the Superior Court's review.
According to its filings, the Plaintiff argued that the time period for the four year statute of limitations should have been deemed to commence running as of the date of the Plaintiff's 2008 demand letter.
After reviewing the applicable law, the court upheld its own denial of the Plaintiff's Petition for the Appointment of Arbitrators and Request to Compel Arbitration on the basis of the expiration of the statute of limitations. The court found that, under Pennsylvania law, since UIM claims were essentially contract claims, the four year statute of limitations for breach of contract claims applied. In this regard, the court relied upon Boyle v. State Farm Mut. Auto. Ins. Co., 456 A.2d 156, 159-160 (Pa.Super. 1983) and 42 Pa.C.S.A. Section 5525(a)(8).
This court noted in its opinion that there was no "governing precedent" as to when the statute of limitations begins to run in a UIM claim. Reviewing a series of Pennsylvania state and federal trial court opinions, the Hopkins court was persuaded to conclude (1) that the statute of limitations begins to run in a UIM claim when the underlying matter is concluded, and (2) that letters issued by counsel and negotiations with the UIM carrier were not sufficient to overcome the statute of limitations or to excuse plaintiff's counsel from the necessity of filing a petition for the appointment of arbitrators in order to preserve the claim.
Since more than four years had passed between the Plaintiff's settlement of the claim with the tortfeasor back in 2004 and the filing of the petition to appoint arbitrators in this matter, the court denied the Petition at issue as barred by the statute of limitations.
Anyone wishing to review this decision may click this LINK
I send thanks to the prevailing Attorney Joseph Walsh of the Lansdale, PA law firm of Walsh Pancio for bringing this decision to my attention.
COMMENTARY:
It appears well-settled that the applicable statute of limitations for a UIM or UM claim is four years as those claims are considered to be based in contract.
Less settled, but apparently becoming more accepted, is the notion that the filing of a Petition to Compel Arbitration and/or a Petition to Appoint Arbitrators is the proper method to preserve a UM/UIM claim under a policy that calls for Arbitration to resolve any disputes on that type of claim.
Presumably, where the UIM policy instead requires a claimant to file a lawsuit in the court of common pleas as opposed to proceeding to an arbitration, a breach of contract Complaint alleging UIM claims should likewise be filed within four years of a settlement with, or a verdict against, a tortfeasor.
Note also that some UIM policies may provide that the UIM claim should be filed in conjunction with the lawsuit against the third party tortfeasor.
Some practitioners may elect in any event to file both negligence claim against the third party tortfeasor and the breach of contract UIM claim in the same Complaint in order to move forward on all claims at the same time.
This matter came before the court by way of the Plaintiff's Petition for the Appointment of Arbitrators and Request to Compel Arbitration. The Plaintiff had previously settled her claim against the tortfeasor in June of 2004.
According to the opinion, while the Plaintiff notified the carrier of the settlement at that time by letter and advised the carrier in that letter that she wished to pursue a UIM claim, the Plaintiff took no further action with respect to the UIM carrier other than submitting a demand letter in 2008. The opinion noted that, in addition to the Claimant's counsel speaking with an Erie claims representative about issues pertaining to an arbitration of the matter, Erie also requested medical records and authorizations from the Plaintiff. The opinion confirms that executed authorizations were provided to Erie, some of which were sent out by the carrier to request records.
In March of 2009, the carrier issued a letter to the insured advising that it was closing its file on the basis that the statute of limitations on the UIM claim had passed. The Plaintiff responded by filing the Motion at issue. That Motion was denied and an appeal filed, triggering the issuance of this Pa.R.A.P. 1925 Opinion from the trial court explaining its reasoning for the Superior Court's review.
According to its filings, the Plaintiff argued that the time period for the four year statute of limitations should have been deemed to commence running as of the date of the Plaintiff's 2008 demand letter.
After reviewing the applicable law, the court upheld its own denial of the Plaintiff's Petition for the Appointment of Arbitrators and Request to Compel Arbitration on the basis of the expiration of the statute of limitations. The court found that, under Pennsylvania law, since UIM claims were essentially contract claims, the four year statute of limitations for breach of contract claims applied. In this regard, the court relied upon Boyle v. State Farm Mut. Auto. Ins. Co., 456 A.2d 156, 159-160 (Pa.Super. 1983) and 42 Pa.C.S.A. Section 5525(a)(8).
This court noted in its opinion that there was no "governing precedent" as to when the statute of limitations begins to run in a UIM claim. Reviewing a series of Pennsylvania state and federal trial court opinions, the Hopkins court was persuaded to conclude (1) that the statute of limitations begins to run in a UIM claim when the underlying matter is concluded, and (2) that letters issued by counsel and negotiations with the UIM carrier were not sufficient to overcome the statute of limitations or to excuse plaintiff's counsel from the necessity of filing a petition for the appointment of arbitrators in order to preserve the claim.
Since more than four years had passed between the Plaintiff's settlement of the claim with the tortfeasor back in 2004 and the filing of the petition to appoint arbitrators in this matter, the court denied the Petition at issue as barred by the statute of limitations.
Anyone wishing to review this decision may click this LINK
I send thanks to the prevailing Attorney Joseph Walsh of the Lansdale, PA law firm of Walsh Pancio for bringing this decision to my attention.
COMMENTARY:
It appears well-settled that the applicable statute of limitations for a UIM or UM claim is four years as those claims are considered to be based in contract.
Less settled, but apparently becoming more accepted, is the notion that the filing of a Petition to Compel Arbitration and/or a Petition to Appoint Arbitrators is the proper method to preserve a UM/UIM claim under a policy that calls for Arbitration to resolve any disputes on that type of claim.
Presumably, where the UIM policy instead requires a claimant to file a lawsuit in the court of common pleas as opposed to proceeding to an arbitration, a breach of contract Complaint alleging UIM claims should likewise be filed within four years of a settlement with, or a verdict against, a tortfeasor.
Note also that some UIM policies may provide that the UIM claim should be filed in conjunction with the lawsuit against the third party tortfeasor.
Some practitioners may elect in any event to file both negligence claim against the third party tortfeasor and the breach of contract UIM claim in the same Complaint in order to move forward on all claims at the same time.
Thursday, January 3, 2013
A Tweet Peach from Georgia
The jury returned a $237,000 verdict which was much lower than the $1.1 million than the plaintiff had sought. In the crash, the 22 year old plaintiff broke her arm and incurred a forehead laceration that resulted in a scar. She asserted that her injuries inhibited her ability to do her job as a hair stylist.
However the defense used posts from the plaintiff's Twitter account at trial in an effort to show the jury that the plaintiff had recovered from the accident and was living a full life.
According to the article, at times after her accident, the plaintiff had tweeted about an "epic weekend" in New Orleans and also showed pictures of the plaintiff at the beach with friends during spring break.
In another tweet, the plaintiff stated that she was "starting to love her scar." Still other tweets posted pictures showing the plaintiff holding a handbag with her injured arm.
I am not sure if non-subscribers can access to the link but if you'd like to try, here is the link to the article. Subscribers to The Legal Intelligencer and the Pennsylvania Law Weekly should certainly be able to access this article HERE.
To date, I have not yet come across any Pennsylvania cases involving a motion to compel access to a party's Twitter account, or pertaining to the introduction of a party's tweets at trial, but I can only imagine it's a matter of time.
I send thanks to reporter Ben Present of The Legal Intelligencer and Pennsylvania Law Weekly for bringing this article to my attention.
Source of image: www.teachthought.com.
Westlaw Citation for Indiana County Facebook Discovery Decision
I send thanks to Attorney James Beck, a writer for the excellent Drug and Device Law Blog, from the Philadelphia law office of Reed Smith LLP for securing this Westlaw citation.
Tuesday, January 1, 2013
THE BIG 80s
Registration is now open for the Tort Talk Expo 2013 CLE Seminar. This CLE seminar promises an update on the law with a Big 80s flavor and has been approved by the Pennsylvania CLE Board for 2 Substantive Credits and 1 Ethics Credit.
The Tort Talk Expo 2013 is set to take place on April 18, 2013 at the Mohegan Sun Casino in Wilkes-Barre, Pennsylvania from 12:30 pm to 4:30 pm with a post-seminar complimentary cocktail reception where you can continue to network and mingle with your colleagues.
Please consider reserving your spot now. See below for more details on the program and registration.
TORT TALK EXPO 2013 CLE SEMINAR
PRESENTED BY
and
Daniel E. Cummins, Esquire
FOLEY, COMERFORD & CUMMINS
at the
MOHEGAN SUN CASINO at POCONO DOWNS
Thursday, April 18, 2013
12:30 p.m. to 4:30 p.m.
2 Substantive & 1 Ethics CLE Credits
Followed by Cocktail Hour (4:30 – 6:30 p.m.) at Breakers in the Mohegan Sun
CLE CREDITS - DOOR PRIZES – RAFFLE PRIZES – NETWORKING OPPORTUNITIES
12:30 – 1:00 pm: REGISTRATION
1:00 – 2:30 pm: THE BIG 80s: AN UPDATE WITH A 1980s FLAVOR
--1:00 – 1:45 pm: THE TORT TALK AUTO LAW UPDATE
Presenter:
Daniel E. Cummins, Esq.
Foley, Comerford & Cummins
--1:45 – 2:30 pm: THE TORT TALK CIVIL LITIGATION UPDATE
Presenters:
Malcolm L. MacGregor, Esq.
Michael J. McDonald, Esq.
McDonald & MacGregor Law Firm
2:30 – 2:45 pm: BREAK
2:45 - 3:45 pm: DIAGNOSIS AND TREATMENT OF SHOULDER AND KNEE INJURIES
Presenter:
Dr. John Kline, Physiatrist
Northeastern Rehabilitation Associates
3:45 – 4:00 pm: BREAK
CANDOR WITH THE COURT AT SETTLEMENT CONFERENCES
Presenters:
Lackawanna County Judge Carmen D. Minora
Luzerne County Judge Michael T. Vough
COMPLIMENTARY COCKTAIL RECEPTION
TO FOLLOW AT BREAKERS
COST:
CLAIMS PROFESSIONALS - $25.00
ATTORNEYS - $175.00
Contact Dan Cummins at dancummins@comcast.net or 570-346-0745
for more information or to register.
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