In its 9-0 decision issued earlier this week on February 23, 2010 in the case of Hertz Corp. v. Friend, the United States Supreme Court addressed the confusion among state courts regarding the appropriate standard to establish a corporate or company defendant's place of business in a diversity case. The Court ruled that a company should be considered a citizen of a state where its “nerve center” is located.
Justice Stephen G. Breyer wrote that "In practice it should normally be the place where the corporation maintains its headquarters."
It is anticipated by legal commentators that the “nerve center” test will be used to establish diversity jurisdiction, allowing more lawsuits to be tried in federal rather than state courts. Thus, it is expected that this decision will serve to hamper forum shopping efforts by plaintiffs.
In this case, the Court rejected arguments by Hertz employees in a wage-and-hour suit that Hertz’s principal place of business was in California, where more of its business activities take place, even though its headquarters is in New Jersey.
In his opinion, Breyer noted that there will still be cases that are difficult to under the “nerve center” test for diversity jurisdiction. “For example, in this era of telecommuting, some corporations may divide their command and coordinating functions among officers who work at several different locations, perhaps communicating over the Internet,” he wrote. “That said, our test nonetheless points courts in a single direction, towards the center of overall direction, control, and coordination.”
The opinion (PDF) of Hertz Corp. v. Friend can be viewed by clicking this link:
http://www.supremecourtus.gov/opinions/09pdf/08-1107.pdf.
Source: Debra Cassens Weiss, ABA Journal Law News Now (Feb. 26, 2010) http://www.abajournal.com/weekly/article/supreme_court_adopts_headquarters_test_hampering_forum-shopping_plaintiffs (citing Reuters and The Wall Street Journal).
Friday, February 26, 2010
Thursday, February 25, 2010
Amicus Brief on Expert Discovery Issue Posted on JDSupra.com
I recently noted here that, at the request of the Pennsylvania Defense Institute, I authored an amicus curiae brief on behalf of a defendant in the case of Barrick v. Holy Spirit Hospital which is now up before the Pennsylvania Superior Court.
The appeal involves the expert discovery issue of whether a plaintiff's treating doctor/medical expert witness for trial should be required to produce letters and e-mails the doctor received from the plaintiff's attorney dealing, in part, with how the expert should frame his opinion.
The amicus brief has been filed of record with the Superior Court and we await an argument date. If you are interested and wish to review the brief, you may scroll down the right hand column of this blog and click on "Barrick v. Holy Spirit Hospital" in the JDSupra.com box.
Any questions or comments you can click on "comments" at the bottom of this post or contact me at dancummins@comcast.net.
The appeal involves the expert discovery issue of whether a plaintiff's treating doctor/medical expert witness for trial should be required to produce letters and e-mails the doctor received from the plaintiff's attorney dealing, in part, with how the expert should frame his opinion.
The amicus brief has been filed of record with the Superior Court and we await an argument date. If you are interested and wish to review the brief, you may scroll down the right hand column of this blog and click on "Barrick v. Holy Spirit Hospital" in the JDSupra.com box.
Any questions or comments you can click on "comments" at the bottom of this post or contact me at dancummins@comcast.net.
Wednesday, February 24, 2010
Tort Talk Is Now Available on Amazon Kindle
As you may recall, Tort Talk was recently picked up by Newstex to be syndicated out to their subscribers through Lexis and other sites. I was just advised that Newstex, with Amazon Kindle, is extending Tort Talk into other new technologies, such as e-book reading devices. I was informed that Tort Talk is now available on the Kindle store.
How do Blogs work on the Kindle? Unlike reading blogs on your computer, Kindle blogs are downloaded onto Kindle so you can read them even when you're not wirelessly connected. And unlike RSS readers which often only provide headlines, blogs on Kindle give you full text content and images.
Now any Kindle-owning readers of Tort Talk can subscribe to the blog on the Kindle and take it wherever they go.
How do Blogs work on the Kindle? Unlike reading blogs on your computer, Kindle blogs are downloaded onto Kindle so you can read them even when you're not wirelessly connected. And unlike RSS readers which often only provide headlines, blogs on Kindle give you full text content and images.
Now any Kindle-owning readers of Tort Talk can subscribe to the blog on the Kindle and take it wherever they go.
Monday, February 22, 2010
Claims Rep Pet Peeves
The following article of mine was accepted for publication by Claims magazine and was published yesterday (2/22/10) as part of the online publication or web magazine. I republish it here, with the permission of the publisher Summit Business Media, for your reading enjoyment.
In the alternative, you can check this article out, as well as a variety of other insurance-themed articles, at http://www.claimsmag.com/. This particular article can be found under "Web Exclusives":
CLAIMS REP PET PEEVES
by
Daniel E. Cummins
Every profession generates its own perpetual annoyances that cause frustration day in and day out. Claims is no exception, as there are pet peeves caused by fellow claim professionals, claim management, attorneys, or even from dealing directly with insureds and claimants.
I recently floated this topic on the discussion boards of several insurance or claim groups to which I belong on LinkedIn.com (http://www.linkedin.com/in/danielcummins). I requested feedback about what irked people the most in claims. What follows is a cross-section of the responses I received in this unscientific study, along with suggested solutions to lessen the frequency that these annoyances occur. Let’s see if any strike a nerve with you.
Surprises
A frequently mentioned pet peeve of claim professionals was being hit with surprises. Claim representatives, under the pressure of management, obviously do not appreciate being notified of a court hearing or a pre-trial settlement conference the day before it is scheduled to happen, particularly when the court previously sent out the date weeks or months before.
As noted by one claim rep, claim managers do not want any surprises from their claim staff. For example, management does not want to learn that a reserve should have been raised substantially a year ago, or that extraordinary settlement authority is needed by next day.
Possible Solution: Stay on top of your calendar — and your defense counsel — to keep you apprised.
Silence from Plaintiff’s Counsel
Another continually recurring annoyance for claim representatives is the situation whereby plaintiff’s counsel sends a letter of representation for an injured party and then falls as silent and unresponsive as a hippo laying in the summer sun at the zoo. The claim representative is then left with an open file in an increasingly growing list of open files, with no opportunity to work to evaluate and close the file out. This is frustrating, to say the least.
Possible Solution: Keep reaching out to plaintiff’s attorney. Dangle a carrot if you can; eventually they will come around because you have what they are looking for — namely, money.
Disorganized Case Presentations
According to the replies to this inquiry on the various discussion boards, perhaps just as bad as the non-responsive plaintiff’s attorney is the disorganized and/or unreasonable attorney. Claim representatives loathe the receipt of a pile of unorganized documents that are not broken out in to separate exhibits and placed in chronological order, with the duplicate copies removed from the pile.
Claim professionals also note that plaintiff’s attorneys often inexplicably fail to provide current photos or, at times, any photos for claims where scarring or disfigurement is alleged. Evaluating a scar that you’ve never seen is obviously problematic.
It is also frustrating for claim representatives to receive records only from the date of the accident forward, as opposed to complete medical files, particularly when it is evident that the claimant has a related prior medical history.
Possible Solution: Politely indicate to plaintiff’s counsel that it would be very helpful and appreciated if, next time, he could submit a streamlined demand package broken down into exhibits, and with duplicates removed. Maybe, one by one, the attorneys will learn, and you will have to deal with this pet peeve less frequently.
Ignorant Defense Counsel
Many claim professionals responded on the discussion boards by lamenting that their own insurance defense counsel often talked down to them instead of to them. Some also complained that defense counsel was often reluctant to hear out the claim representative’s opinions about the file, and that counsel even took umbrage, at times, with the claim representative offering instructions about how to proceed with the case or settlement negotiations.
Other pet peeves with defense counsel included a delay in timely status reports about the file and not receiving other reports as promised. Failure of defense counsel to return phone calls was another oft-repeated complaint.
Some claim professionals complained about the apparent inability of defense counsel to answer simple questions about the value of a claim or the cost to defend through the end of the matter. One particularly irked claim professional vented about “defense lawyers who call you up, yak for 45 minutes about non-urgent items and then close by saying, ‘I'll put this in a letter to you.’”
Possible solution: Have a frank discussion with defense counsel at the start of each claim, politely reminding him about how you would like certain things to be handled.
Difficult Insureds or Unrepresented Claimants
Another common lamentation by claim representatives concerns the penchant of insurers to absorb losses rather than refer fraudulent claims and claimants to the carrier’s Special Investigation Unit (SIU). This claim rep would rather fight and let SIU handle such claims to conclusion where the elements of fraud are clearly displayed within the content of the submissions made by the claimant and his counsel.
Some claim reps expressed beefs about the shoddy treatment they sometimes receive from difficult insureds or unrepresented claimants. One pet peeve noted was insureds who demand immediate responses from the claim reps on their terms. For instance, for a homeowners’ claim requiring an inspection, the homeowner reports that he’ll be home from work at 5:30 p.m. Well, the family should finish eating dinner by 6:30 p.m., so can the adjuster simply arrive between 7 and 7:30 p.m.?
Not surprisingly, claim professionals do not feel kindly towards insureds or claimants who call and swear at them. They are also not too fond of those who threaten to call the claim representative’s boss, insurance commissioner, or whomever else, provided that the claim rep does not comply with whatever request instantly.
Possible Solution: Bite your tongue. You can’t win here.
Fellow Professionals
One claim rep pointed to the pet peeve of insurance agents calling at the request of insureds and asking why the claim was not being paid, without the agent having first read the applicable policy language. Another claim professional said his biggest pet peeve is opposing claim reps. Many seem burned out; many lack any personal touch. Equally frustrating are opposing claim reps who take an unreasonable settlement position in a matter involving multiple defendants and defending carriers.
Possible Solution: Remember the adage, “what goes around, comes around.” Treat fellow claim professionals reasonably, and that good karma will hopefully, eventually, come back to you.
While these pet peeves may never be eradicated, perhaps an active acknowledgment of them by all of the parties involved can jumpstart the process of neutralizing irritating and frustrating situations. By addressing a pet peeve as it occurs, claim professionals can potentially minimize the frequency at which these recurring annoyances happen. In the end, the claims profession as a whole will benefit.
Daniel E. Cummins, Esq., is an insurance defense/coverage attorney with the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins (http://www.foleycognettilaw.com/). His blog, Tort Talk, provides updates about Pennsylvania civil litigation and insurance law issues (http://www.torttalk.com/).
In the alternative, you can check this article out, as well as a variety of other insurance-themed articles, at http://www.claimsmag.com/. This particular article can be found under "Web Exclusives":
CLAIMS REP PET PEEVES
by
Daniel E. Cummins
Every profession generates its own perpetual annoyances that cause frustration day in and day out. Claims is no exception, as there are pet peeves caused by fellow claim professionals, claim management, attorneys, or even from dealing directly with insureds and claimants.
I recently floated this topic on the discussion boards of several insurance or claim groups to which I belong on LinkedIn.com (http://www.linkedin.com/in/danielcummins). I requested feedback about what irked people the most in claims. What follows is a cross-section of the responses I received in this unscientific study, along with suggested solutions to lessen the frequency that these annoyances occur. Let’s see if any strike a nerve with you.
Surprises
A frequently mentioned pet peeve of claim professionals was being hit with surprises. Claim representatives, under the pressure of management, obviously do not appreciate being notified of a court hearing or a pre-trial settlement conference the day before it is scheduled to happen, particularly when the court previously sent out the date weeks or months before.
As noted by one claim rep, claim managers do not want any surprises from their claim staff. For example, management does not want to learn that a reserve should have been raised substantially a year ago, or that extraordinary settlement authority is needed by next day.
Possible Solution: Stay on top of your calendar — and your defense counsel — to keep you apprised.
Silence from Plaintiff’s Counsel
Another continually recurring annoyance for claim representatives is the situation whereby plaintiff’s counsel sends a letter of representation for an injured party and then falls as silent and unresponsive as a hippo laying in the summer sun at the zoo. The claim representative is then left with an open file in an increasingly growing list of open files, with no opportunity to work to evaluate and close the file out. This is frustrating, to say the least.
Possible Solution: Keep reaching out to plaintiff’s attorney. Dangle a carrot if you can; eventually they will come around because you have what they are looking for — namely, money.
Disorganized Case Presentations
According to the replies to this inquiry on the various discussion boards, perhaps just as bad as the non-responsive plaintiff’s attorney is the disorganized and/or unreasonable attorney. Claim representatives loathe the receipt of a pile of unorganized documents that are not broken out in to separate exhibits and placed in chronological order, with the duplicate copies removed from the pile.
Claim professionals also note that plaintiff’s attorneys often inexplicably fail to provide current photos or, at times, any photos for claims where scarring or disfigurement is alleged. Evaluating a scar that you’ve never seen is obviously problematic.
It is also frustrating for claim representatives to receive records only from the date of the accident forward, as opposed to complete medical files, particularly when it is evident that the claimant has a related prior medical history.
Possible Solution: Politely indicate to plaintiff’s counsel that it would be very helpful and appreciated if, next time, he could submit a streamlined demand package broken down into exhibits, and with duplicates removed. Maybe, one by one, the attorneys will learn, and you will have to deal with this pet peeve less frequently.
Ignorant Defense Counsel
Many claim professionals responded on the discussion boards by lamenting that their own insurance defense counsel often talked down to them instead of to them. Some also complained that defense counsel was often reluctant to hear out the claim representative’s opinions about the file, and that counsel even took umbrage, at times, with the claim representative offering instructions about how to proceed with the case or settlement negotiations.
Other pet peeves with defense counsel included a delay in timely status reports about the file and not receiving other reports as promised. Failure of defense counsel to return phone calls was another oft-repeated complaint.
Some claim professionals complained about the apparent inability of defense counsel to answer simple questions about the value of a claim or the cost to defend through the end of the matter. One particularly irked claim professional vented about “defense lawyers who call you up, yak for 45 minutes about non-urgent items and then close by saying, ‘I'll put this in a letter to you.’”
Possible solution: Have a frank discussion with defense counsel at the start of each claim, politely reminding him about how you would like certain things to be handled.
Difficult Insureds or Unrepresented Claimants
Another common lamentation by claim representatives concerns the penchant of insurers to absorb losses rather than refer fraudulent claims and claimants to the carrier’s Special Investigation Unit (SIU). This claim rep would rather fight and let SIU handle such claims to conclusion where the elements of fraud are clearly displayed within the content of the submissions made by the claimant and his counsel.
Some claim reps expressed beefs about the shoddy treatment they sometimes receive from difficult insureds or unrepresented claimants. One pet peeve noted was insureds who demand immediate responses from the claim reps on their terms. For instance, for a homeowners’ claim requiring an inspection, the homeowner reports that he’ll be home from work at 5:30 p.m. Well, the family should finish eating dinner by 6:30 p.m., so can the adjuster simply arrive between 7 and 7:30 p.m.?
Not surprisingly, claim professionals do not feel kindly towards insureds or claimants who call and swear at them. They are also not too fond of those who threaten to call the claim representative’s boss, insurance commissioner, or whomever else, provided that the claim rep does not comply with whatever request instantly.
Possible Solution: Bite your tongue. You can’t win here.
Fellow Professionals
One claim rep pointed to the pet peeve of insurance agents calling at the request of insureds and asking why the claim was not being paid, without the agent having first read the applicable policy language. Another claim professional said his biggest pet peeve is opposing claim reps. Many seem burned out; many lack any personal touch. Equally frustrating are opposing claim reps who take an unreasonable settlement position in a matter involving multiple defendants and defending carriers.
Possible Solution: Remember the adage, “what goes around, comes around.” Treat fellow claim professionals reasonably, and that good karma will hopefully, eventually, come back to you.
While these pet peeves may never be eradicated, perhaps an active acknowledgment of them by all of the parties involved can jumpstart the process of neutralizing irritating and frustrating situations. By addressing a pet peeve as it occurs, claim professionals can potentially minimize the frequency at which these recurring annoyances happen. In the end, the claims profession as a whole will benefit.
Daniel E. Cummins, Esq., is an insurance defense/coverage attorney with the Scranton, Pennsylvania law firm of Foley, Cognetti, Comerford, Cimini & Cummins (http://www.foleycognettilaw.com/). His blog, Tort Talk, provides updates about Pennsylvania civil litigation and insurance law issues (http://www.torttalk.com/).
Friday, February 19, 2010
New Trial Court Decision Sustaining Venue Clause in UM Policy
A few days ago, the Lackawanna County Court of Common Pleas handed down a decision upholding a venue clause in a UM policy issued by Erie Insurance Exchange in the case of Kichline v. Erie Ins. Exchange, 2009 CIV 3052 (Lacka. Co. Feb. 16, 2010 Thomson, S.J).
Visiting Senior Judge Harold A. Thomson, Jr., my old boss from my law clerking days in Pike County, was faced with Erie Insurance's Preliminary Objections to a breach of contract and bad faith suit filed against Erie filed in Lackawanna County.
The case arose out of an accident that occurred in Northampton County during which the pedestrian Plaintiff was struck by an uninsured driver. At the time of the accident the Plaintiff was a resident relative insured under his parent's Erie policy. The parents lived in Northampton County.
Erie raised coverage issues and refused to participate in arbitration proceedings. The Plaintiff's Lackawanna County attorney filed the breach of contract and bad faith action in Lackawanna County. The Plaintiff's theory on venue was essentially that Erie did business in Lackawanna County and could therefore be sued in that county on the claims presented.
Judge Thomson rejected the Plaintiff's venue argument and sustained the carrier's Preliminary Objections. The court was influenced by the fact that the accident occurred in Northampton County, the insureds resided in Northampton County at the time of the accident, and the Erie policy language provided a forum selection clause that mandated that any dispute as to coverage was to be decided in the county where the named insured resided at the time of the accident.
It is noted that this result of this case is similar to that of O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 2009 WL 3720649, 2009 Pa.Super. 214 (November 9, 2009, Judges Freedberg, Cleland and Kelly) in which the Superior Court upheld the UIM carrier's forum selection clause requiring UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident. The O'Hara decision was not cited in Kichline v. Erie Ins.
Anyone desiring a copy of the Kichline v. Erie Ins. decision may contact me at dancummins@comcast.net.
I thank Attorney Marianne J. Gilmartin of the Scranton office of Stevens & Lee for bringing this case to my attention.
Visiting Senior Judge Harold A. Thomson, Jr., my old boss from my law clerking days in Pike County, was faced with Erie Insurance's Preliminary Objections to a breach of contract and bad faith suit filed against Erie filed in Lackawanna County.
The case arose out of an accident that occurred in Northampton County during which the pedestrian Plaintiff was struck by an uninsured driver. At the time of the accident the Plaintiff was a resident relative insured under his parent's Erie policy. The parents lived in Northampton County.
Erie raised coverage issues and refused to participate in arbitration proceedings. The Plaintiff's Lackawanna County attorney filed the breach of contract and bad faith action in Lackawanna County. The Plaintiff's theory on venue was essentially that Erie did business in Lackawanna County and could therefore be sued in that county on the claims presented.
Judge Thomson rejected the Plaintiff's venue argument and sustained the carrier's Preliminary Objections. The court was influenced by the fact that the accident occurred in Northampton County, the insureds resided in Northampton County at the time of the accident, and the Erie policy language provided a forum selection clause that mandated that any dispute as to coverage was to be decided in the county where the named insured resided at the time of the accident.
It is noted that this result of this case is similar to that of O'Hara v. The First Liberty Ins. Corp. d/b/a Liberty Mut. Ins. Group, 2009 WL 3720649, 2009 Pa.Super. 214 (November 9, 2009, Judges Freedberg, Cleland and Kelly) in which the Superior Court upheld the UIM carrier's forum selection clause requiring UIM lawsuit to be brought in the county of the insured's legal domicile at the time of the accident. The O'Hara decision was not cited in Kichline v. Erie Ins.
Anyone desiring a copy of the Kichline v. Erie Ins. decision may contact me at dancummins@comcast.net.
I thank Attorney Marianne J. Gilmartin of the Scranton office of Stevens & Lee for bringing this case to my attention.
Tuesday, February 16, 2010
New Westlaw Citation For Trial Court Opinion on Expert Discovery
Here's the new Westlaw citation for the case of Barrick v. Holy Spirit Hospital, 2009 WL 5841789 (Cumberland Co. 2009 Hess, J.). In this case, the trial court ruled that a plaintiff's treating doctor, who also turns out to be the identified expert for trial for the plaintiff, must turn over correspondence the expert received from the plaintiff's attorney, particularly where, as in this case, the plaintiff's attorney discussed in his letters the strategy on the formulation of the expert's opinion.
This case has been appealed to the Superior Court by the Plaintiff and is currently in the briefing phase. I am in the process of drafting the amicus brief on behalf of the Pennsylvania Defense Institute. I will post a link to the brief once it is filed if anyone is interested. In the meantime, please contact me at dancummins@comcast.net should you wish to view a copy of the trial court's opinion.
Thanks to James Beck of the Philadelphia office the Dechert LLP law firm for securing the Westlaw citation.
This case has been appealed to the Superior Court by the Plaintiff and is currently in the briefing phase. I am in the process of drafting the amicus brief on behalf of the Pennsylvania Defense Institute. I will post a link to the brief once it is filed if anyone is interested. In the meantime, please contact me at dancummins@comcast.net should you wish to view a copy of the trial court's opinion.
Thanks to James Beck of the Philadelphia office the Dechert LLP law firm for securing the Westlaw citation.
Judge Greenaway Appointment to the Third Circuit Court of Appeals Confirmed
On Tuesday, February 15, 2010, the United States Senate unanimously confirmed New Jersey Federal District Court Judge Joseph Greenaway Jr.'s appointment to the United States Third Circuit Court of Appeals.
The vote on the nomination of Pennsylvania Federal Middle District Court Judge Thomas I. Vanaskie is still pending.
The vote on the nomination of Pennsylvania Federal Middle District Court Judge Thomas I. Vanaskie is still pending.
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