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TORT TALK POSTS

Decision by Judge Minora Expands the Law of Negligent Liability for a Suicide

In his recent March 19, 2014 Opinion (31 pages) in the case of Hudak-Bisset v. County of Lackawanna et al., No. 2007-CV-2401 (C.P. Lacka. Co. March 19, 2014 Minora, J.), Lackawanna County Judge Carmen D. Minora addressed the unfortunate issue of whether a Plaintiff's Motion to Amend a Complaint should be granted to allow for the inclusion of Wrongful Death/Survival Act claims where the death of the Plaintiff resulted from a suicide that was allegedly brought on by the decedent's pain from a motor vehicle accident.

Judge Carmen D. Minora
Lackawanna County

Judge Minora more specifically describe the matter as involving the "vexing and complicated question of whether a Plaintiff ought to be allowed to recover damages for a suicide allegedly secondary to accident related injuries and chronic pain caused by the Tortfeasor/Defendant."  Op. at p. 3. 

The court noted that the resolution of this issue was found to be particularly vexing in light of the fact that it has been addressed on previous occasions in the context of a wide variety of factual scenarios subjected to different standards of review in the case law such as the legal standards applicable to preliminary objections, motions for summary judgment, and motions to amend to name a few.

After reviewing the procedural  law of Pa.R.C.P. 1033 which allows for the liberal construction of requests to amend pleadings and analyzing the substantive law with a  a "Palsgraf-like" assessment of the extent and duration of the duty and proximate cause which the alleged tortfeasor defendant owed the plaintiff, Judge Minora ultimately digressed from a line of cases to hold that the amendment should be allowed.

Judge Minora differed with a line of cases dating back to 1989 that have generally ruled that a  wrongful death action can not be based upon a suicide event as a suicide was viewed as an independent intervening act that is considered so extraordinary as to be deemed essentially unforeseeable to the tortfeasor.  That line of cases therefore held as a matter of law that the tortfeasor's negligence could not be the proximate cause of a later suicide since such injuries were not foreseeable.  See McPeake v. William T. Cannon, Esq., P.C., 553 A.2d 439 (Pa.Super. 1989).

With his ruling in this Hudak-Bisset case, Judge Minora can not be said to be yet another judge who "rigidly follow[s]" the McPeake line of cases.  Rather, Judge Minora relied in part on retired Lackawanna County Judge S. John Cottone's decision in the case of Mackin v. Arthur J. McHale Heating & Air Conditioning Co., Inc., 76 D.&C.4th 544 (C.P. Lacka. Co. 2005) to rule differently.  Judge Cottone ruled in Mackin, noted to possibly one of the only decisions on record that did not follow the McPeake rule of law, that the above-referenced line of cases on this issue of non-liability for a suicide on the grounds that the injuries were totally unforeseeable was too "restrictive" and that, in some factual contexts, a jury should be allowed to assess whether or not a plaintiff has met their burden of proving the element of proximate causation.

Judge Minora distinguished the McPeake decisions on its facts, on public policy grounds, by the legal standard of review applied (preliminary objections in McPeake versus a liberal motion to amend a Complaint standard in this Hudak-Bisset case), and by the fact that the defendant in this Hudak-Bisset case before him was a common carrier bus company who, by law, is held to the highest degree of care in negligence actions.  Judge Minora was also influenced in this matter on the proximate causation question by the fact that the decedent left a suicide note indicating that the decedent had ended his life in part due to the inability to continue on with the chronic ongoing pain caused by the subject accident with the defendant.

Judge Minora also pointed to other lines of cases on other important issues that have been allowed to be expanded as part of the living law such as, for example, the slow but steady expansion of the ambit of liability in negligent infliction of emotional distress claims from the "impact" rule, to the "zone of danger" rule, to the "bystander" rule and, most recently the further expansion of that doctrine in the context of medical malpractice cases.

Judge Minora reasoned that, in a similar fashion in this Hudak-Bisset case, the Plaintiff was seeking to amend the Complaint to assert wrongful death and survival claims in the context of a suicide case despite McPeake and its progeny.  The Plaintiffs were proceeding on the grounds that the evolution of the law may allow for a finding that claims of this type and in this context may prove to be valid in the end.  Concisely, the Plaintiffs were fighting for the basic right to "test the limits of the existing law and [to] be allowed to plead [the claim] as a developing area of the law." Hudak-Bisset at p. 15.

Judge Minora also applied on the five part test enunciated by the Pennsylvania Supreme Court in the case of Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000), to determine whether any duty exists ((1) the relationship between the parties, (2) the social utility of the actor's conduct, (3) the nature of the risk imposed and the foreseeability of the harm incurred, (4) the consequences of imposing a duty upon the actor, and (5) the overall public interest in the proposed solution."

The court ruled that the Althaus test supported the finding of a duty under the facts presented and in particular, the facts intended to be pled of an alleged suicide note allegedly tying the suicide to the Defendants' alleged negligence.  The court in Hudak-Bisset also pointed out the evolution of jury instructions and verdict slips from the use of the term "substantial factor" to "factual cause" would also support a finding of possible liability in this context, i.e. was the negligence of the tortfeasor a factual cause of the decedent's suicide under this set of facts?"

Accordingly, after revisiting the liberal standard of review applicable to motions to amend pleadings under Pa.R.C.P. 1033, Judge Minora ultimately ruled that, under the facts plead, the Plaintiff's right to try to push for an expansion of the law should be honored. 

As such, the motion to amend the Complaint was granted.

Anyone wishing to read Judge Minora's Opinion in Hudak-Bisset may click HERE.

To review a Tort Talk post on other cases addressing liability under Pennsylvania law relative to a suicide, click on this LINK.

Another Court Rules That Third Party Binding Arbitration Award Below Liability Limits Collaterally Estops Subsequent UIM Claim

In his recent decision in the Federal District Court for the Eastern District of Pennsylvania case of Harvey v. Liberty Mut. Ins. Group, NO. 130-CV-04693 (E.D. Pa. March 26, 2014 Joyner, J.), Judge J. Curtis Joyner ruled that an injured party was barred by the doctrine of collateral estoppel from proceeding on a UIM claim after having agreed to a high/low arbitration on the third party side with a high parameter below the third party liability limits and where the arbitration award was entered below that high parameter.

The court ruled in this fashion even though there was an agreement between the parties in the third party liability case that the binding arbitration was not intended to preclude any subsequent proceedings.

According to the Opinion, the liability limits on the third party side were $2.25 million dollars.  The high parameter agreed between the parties for the binding arbitration was $1.35 million.  The arbitration award entered was for $680,000.00.

The Harvey Court read the binding arbitration agreement as only pertaining to the award being limited by the high parameter.  The third party proceedings and the award entered was found to be still subject to the collateral estoppel doctrine when the award entered was below the high. 

Judge Joyner noted that, to avoid the effects of the collateral estoppel doctrine, the parties could have easily written into the binding high/low agreement a proviso to the effect that "the binding high figure is not intended to have any preclusive effect."

The court's ultimate rationale was that since the insured's recovery was finally determined in a binding prior proceeding not to exceed the liability insurance policy limits held by the third party, the UIM claim was collaterally estopped.
 

Judge Joyner's decision in Harvey can be viewed HERE and the accompanying Order HERE.

I send thanks to Attorney Scott Cooper of the Schmidt Kramer law firm in Harrisburg, PA for bringing this case to my attention.

Another UIM Collateral Estoppel Opinion:

To review a Tort Talk post on a state court of common pleas decision along the same lines by Judge Mark Bernstein out of Philadelphia County holding that an injured party was collaterally estopped from proceeding on a UIM claim after the entry of an award less than the liability limits in a third party binding high/low arbitration click HERE. 

Source of image:  www.chembiotechpatentlaw.com

 

Judge Wettick: Attorney-Client Privilege Does Not Continue For Defunct Companies

In his recent decision in the case of Red Vision Systems, Inc. et al. v. National Real Estate Information Services, L.P, et al., No. GD - 13 - 008572 (C.P. Allegh. Co. Feb. 26, 2014 Wettick, J.), Judge Wettick dealt with the novel issue of the application of the attorney-client privilege in the context of a request for the production of documents propounded upon a dissolved/non-operating company. 

After a thorough review of the scope of the attorney-client privilege, Judge Wettick ultimately ruled that the privilege did not extend to corporations that were no longer in business.  Accordingly, a former in-house counsel for several defunct companies was ordered to turn over documents in discovery related to status of the companies' assets.

Judge R. Stanton Wettick
Allegheny County

Judge Wettick rejected an effort to compare the situation of a dissolved corporation to that of a deceased person -- the attorney-client privilege is deemed to continue once a person passes away.  The court noted that the same concerns of confidentiality do not exist in the corporate setting as corporate officials can not expect the same level of privacy or confidentiality once a corporation goes out of business as the new management of the company or a trustee in bankruptcy may be entitled to access to the information at issue.

It is noted that Judge Wettick's decision was recently appealed up to the Superior Court.

Judge Wettick's decision may be viewed HERE.

I send thanks to Attorney Roy Leonard of the Stonecipher Law Firm in Pittsburgh for bringing this case to my attention.


Source of top image:  www.legalfinancejournal.com

Latest UIM Sign Down Decision Favors Carrier's Position

One of the latest UIM sign down cases was handed down by Judge C. Darnell Jones II of the Federal District Court for the Eastern District of Pennsylvania on March 21, 2014 in the case Henderson v. Charter Oak Ins. Co., No. 12-4363 (E.D. Pa. March 21, 2014 Jones, J.)


Henderson involved the sign down issue in the context of UIM coverage under a commercial policy.  According to the Opinion, the insured executed a proper sign down form back in 2008-09 under 75 Pa.C.S.A. § 1734 of the Motor Vehicle Financial Responsibility Law (MVFRL) under which the UIM coverage of $1 million was reduced to $35,000. 


Thereafter, in 2010-11, the sign down forms were not signed again and the only thing on the election form was that the insured wanted the minimum UIM coverage.  Testimony from an underwriter confirmed that the forms only applied from year to year.   


The Plaintiff insured argued that there should be $1 million in UIM coverage under the policy because the form was not executed properly in 2010-11 and his accident occurred during that time period.  The insurance company asserted that there was only $35,000 in coverage under the rationale that once a sign down form is executed, that form applied over the entire lifetime of that policy.


Relying upon the Pennsylvania Supreme Court opinion in Blood v. Old Guard Ins. Co., 934 A.2d 1218 (Pa. 2007), the Federal Eastern District Court ruled that the insured was only entitled to $35,000 in UIM coverage regardless of the testimony offered up by the underwriter witness as there was no written request for higher coverage.  


The Henderson court noted that the Pennsylvania Supreme Court’s decision in Blood supported the decision that a sign down form is good through the entire lifetime of the policy unless the company receives a written request for higher coverage. 


Anyone wishing to review a copy of this Henderson decision may contact me at dancummins@comcast.net.


I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer and Attorney Paul Oven of the Moosic law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Federal Middle District Court Addresses Punitive Damages Issues in Trucking Accident Case

Federal Middle District Judge Sylvia H. Rambo recently issued two (2) Opinions on the issue of punitive damages in a trucking accident litigation entitled to Stemrich v. Oleh Zadiyaka, No. 1:12-CV-01409 (M.D. Pa. 2-21-14 Rambo, J.).  

This matter arises out of a trucking accident that occurred on September 28, 2011 on Interstate 83 North when the Defendant truck driver allegedly rear-ended the Plaintiff’s vehicle on the highway.   This allegedly caused a chain reaction accident with two (2) vehicles ahead and allegedly resulted in injuries to the Plaintiff.  

In one of the Opinions, Judge Rambo denied the Defendant’s Motion for Partial Summary Judgment on the issue of punitive damages.

With regard to the Motion for Partial Summary Judgment on the punitive damages issue, the Defendant asserted that its Motion should be granted as there was no evidence of that suggested that the Defendant acted recklessly.

After reviewing Pennsylvania law with respect to reckless conduct and punitive damages, the court found issues of fact, including expert report from the Plaintiff, all of which served to defeat the motion.   The court additionally noted that the dispositive issue presented required an assessment of the Defendant’s state of mind at the time of the accident under which circumstances the law held that a court should be reluctant to grant a Motion for Summary Judgment as a determination of that issue largely depends upon the credibility of the witnesses testifying as to their own states of mind.   As the court found that the determination of whether the Defendant truck driver subjectively appreciated the risk of harm involved or whether he consciously disregarded that risk all required an assessment of the Defendant truck driver’s credibility, the court left that issue for the jury to decide.

The court also allowed the claim for vicarious liability of a trucking company for punitive damages to stand and proceed to a jury.  

Any one wishing to review the Court's decision denying the Motion for Partial Summary Judgment may click this LINK.

In a separate Opinion in the same matter, Judge Rambo granted the Plaintiff’s proposed method of bifurcation in conjunction with a punitive damages claim.    More specifically, the Plaintiff argued that the trial court should be bifurcated into two segments:  first, the jury should consider whether the Defendant is reliable for the injuries alleged, whether the Defendants’ conduct was recklessly indifferent, and the amount of compensatory damages to be awarded; and second, the jury should then be permitted to consider the amount of punitive damages to award, if any.  

In so ruling, the court rejected the Defendant’s request that the trial be trifurcated into three segments:  first, a jury consideration of whether the Defendants were liable; second, a jury consideration as to the extent of the Plaintiff’s alleged injuries and the amount of compensatory damages; and third, a jury consideration of whether punitive damages were appropriate.  

Anyone wishing to review the Court's decision on the bifurcation of trial issue may click this LINK

It is noted that Plaintiff’s case is being handled by Michael A. O’Donnell of the O’Donnell Law Offices in Kingston, Pennsylvania.

Federal Court Forum Shopping Over Non-Resident Corporate Defendants Coming to an End?

According to a recent March 4, 2014 Pennsylvania Law Weekly article by Attorney Will Sylianteng of the WES Litigation Group LLP entitled “Does Daimler Mark the End of Forum Shopping?”, the recent United States Supreme Court decision in the case of Daimler AG v. Baumen, 571 US ___ (2014), may serve to end the practice of forum shopping against corporate Defendants and others.  

As noted in Attorney Sylianteng’s article, the Due Process Clause of the 14^th Amendment to the United States Constitution limits the rights of states to exercise personal jurisdiction over non-resident Defendants.   The limitation is based upon the nature and quality of the Defendant’s contacts with the forum state.   The courts have held that a non-resident Defendant’s contacts could possibly give rise to either specific or general personal jurisdiction over that Defendant. 

Attorney Sylianteng notes that, traditionally, the exercise of specific jurisdiction over a Defendant would be proper if the underlying conduct upon which the suit is based occurred within the forum state.  

In contrast, under general personal jurisdiction concepts, a broader stance was taken and a forum state would be permitted to exercise jurisdiction over a non-resident Defendant, even for acts or conduct that did not occur within the forum state, if the non-resident Defendant had “continuous and systematic” contacts in the forum state.  

According to Attorney Sylianteng, in its decision in Diamler, the United States Supreme Court limited the “continuous and systematic” tests to cases involving specific jurisdiction only.  Accordingly, it appears that the continuous and symptomatic contacts argument can no longer be utilized in a case when general jurisdiction over a non-resident corporate defendant is being sought.  

Ultimately, in the post-Diamler world, it would appear that only a limited number of states could exercise general jurisdiction over a corporate Defendant.   Those states would be the state of the corporations and corporation and, if different, the state within which the corporation has its principal place of business.   Another possible place in which a non-resident Defendant could be brought to court would be under specific jurisdiction principles where the underlying tortious act occurred within a particular forum state. 

In his article, Attorney Sylianteng anticipates increased litigation over the issue of personal jurisdiction in cases involving non-resident Defendants, particularly where the underlying incident occurred at a location outside of the state within which the lawsuit is brought.  

Anyone wishing to review Attorney Sylianteng’s article in the Pennsylvania Law Weekly may click on this LINK.

Here's a LINK to the Daimler v. Bauman decision itself.

 

Source:  Pennsylvania Law Weekly, 37 PLW at 196 (March 4, 2014).