Superior Court Clarifies Applicability of Limited Tort Option

Tort Talkers may recall that, a while back, I reported on the McWeeney v. Estate of Strickler, No. 2009-SU-6582-01 (C.P. York Dec. 16, 2011 Thompson, J.), the Court granted a Defendant’s Motion for Summary Judgment and denied a Plaintiff’s Motion for Partial Summary Judgment in a Limited Tort case.

The trial court's decision has now been reversed on appeal by the Pennsylvania Superior Court.

According to the trial court Opinion, at the time of the accident, the injured party Plaintiff was operating a vehicle owned by her fiancé. That vehicle was covered by Progressive Insurance Company and listed the fiancé as the “Named Insured” under a Limited Tort policy. However, both the injured party Plaintiff and her fiancé were listed as principal drivers on the policy declarations page. The trial court additionally noted that the injured party Plaintiff was a permissive driver of the vehicle on the date of the accident.

The Defendant filed a Motion for Summary Judgment arguing that the Plaintiff was covered by the Limited Tort option and had not sustained any serious injuries so as to breach the Limited Tort threshold. In response, the Plaintiff filed a counter-motion arguing that she was not bound by the Limited Tort option because she was not “a named insured” or “insured” within the definition provided under the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa. C.S. §1705.

In its decision, the trial court had found, as a matter of law, that the Plaintiff was insured under the Limited Tort option of the Progressive policy. The trial court noted that, under an application of the MVFRL, as well as the terms of the Progressive Insurance policy, it appeared that the injured party Plaintiff fell within the definition of an “insured person” under that policy, at the very least, as a permissive driver of the covered vehicle and as a person listed as one of the principal drivers on the declarations page.

Based on these facts, the trial court felt that the Plaintiff did indeed fall under the definition of a “named insured” as found under 75 Pa.C.S. §1705(f) (“a named insured” for purposes of §1705 is “any individual identified by name as an insured in a policy of private passenger motor vehicle insurance.”).

The trial court went on state that, as a named insured, the injured party Plaintiff would be held to the same tort option selected by the other named insured under the policy, i.e., the Limited Tort option in this case.

On January 30, 2013, the Pennsylvania Superior Court reversed and held that under the above facts and under the plain and unambiguous terms of the MVFRL, the injured party Plaintiff was not a "named insured" nor an "insured" under Section 1705. Therefore, she was not bound by the limited tort selection and the trial court erroneously found that she was deemed bound by limited tort. 

The McWeeney case was decided by President Judge Stevens along with Judges Bender and Gantman.  The Opinion was written by President Judge Stevens.

The Superior Court held that, under Section 1705, "only one who is identified by name as an insured on the face of the policy is a 'named insured' for purposes of tort election."

The court also stated that to hold that the permissive driver is an "insured" bound by limited tort contravenes the intent of Section 1705 as Section 1705(f) of the MVFRL limits the class of people who are considered bound by the limited tort selection and the permissive driver was not found to be within that class.

Ultimately, the trial court order was vacated and the case remanded.

Anyone wishing to review the Pennsylvania Superior Court's decision in the case of McWeeney v. Estate of Strickler may click this LINK.

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

 

 

COMMENTARY:

 

The McWeeney case may prove to be another case that is useful in determining which tort option will apply to a Plaintiff where the Plaintiff is a named insured and/or an insured under policies containing conflicting tort options, i.e., one with the full tort option and one with the limited tort option.

 

Other cases to consider in this analysis of which tort option should apply include:

 

Hoffman v. Troncelitti, 839 A.2d 1013 (Pa. 2013);

 

Progressive Halcyon Ins. Co. v. Kennedy, 908 A.2d 914 (Pa.Super. 2006).

 

There may be other cases out there on this issue as well and further research is recommended.

Martindale Hubbell AV Rating Secured

I was recently notified that I have been granted an AV rating by Martindale-Hubbell, which is the highest rating possible in that peer review system for lawyers.

According to the Martindale Hubbell website "Peer Review Ratings attest to a lawyer's legal ability and professional ethics in specific Areas of Practice, and reflects the confidential opinions of members of the Bar and Judiciary. The Peer Review Rating is established by lawyers. The legal community respects the accuracy of ratings because it knows that its own members are directly involved in the process."

The "A "rating, reflects a finding of Excellent professional ability in the area where the lawyer practices, the lawyer's expertise, and other professional qualifications.

The "V" represents a finding of Very High Ethical Standards and denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities.

I send thanks out to all of my colleagues who were generous enough to provide me with a good rating to enable me to secure this AV rating - Thank You Very Much - I really appreciate it.

Dan Cummins
Foley, Comerford & Cummins
Scranton, PA

Post-Trial Motions Addressed in Lackawanna County MVA Case

In his recent decision in the case of Holmes v. Brozonis, No. 2008-CV-5025 (C.P. Lacka. Co. Jan. 16, 2013 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed various issues on post-trial motions after an automobile accident lawsuit trial in which the jury entered a verdict in the amount of $4,250.00.

In this Opinion, the court addressed the law regarding arguments pertaining to the alleged inadequacy of the verdict, with respect to defense counsel’s re-direct examination of the defense medical expert, and with respect to defense counsel’s re-direct examination of the defense medical expert, and regarding the Court’s instruction given to the jury in response to a question raised by the jury during the course of their deliberations.

With regards to the claim that the jury’s award was inadequate, Judge Nealon noted the shocks-the-conscience test and found that the case before him did not meet that test.

As to the allegations that the defense re-direct examination of the defense medical expert went well beyond the scope of the cross-examination, the Court reviewed the transcript and concluded that defense counsel’s questioning was not improper. Rather, the Court viewed the Plaintiff’s attorney’s cross-examination of the defense expert as having “opened the door” to the re-direct examination at issue.

In terms of the issues surrounding the jury’s question submitted to the court during the course of its deliberation, the Opinion noted that the jury had an inquiry regarding the Plaintiff’s medical expense exhibits.

Judge Nealon stated that he had first reviewed his proposed response to the jury’s inquiry with counsel and had received no objection from either counsel to that planned response.

In rejecting the Plaintiff’s post-trial motions on this issue, Judge Nealon provided a thorough review of the law pertaining to the Court’s broad discretion in formulating an appropriate response to an inquiry submitted by a jury during deliberations.

The Court not only found its response to the jury to be within the parameters of the law but also noted that any objection in this regard had been waived due to the failure of any party to state an objection during the course of the proceedings to the response provided by the court to the jury.

Overall, the Court denied the Plaintiff’s Motion for Post-Trial Relief.

Anyone desiring a copy of this Opinion in the case of Holmes v. Brozonis may contact me at dancummins@comcast.net.

Update on Gubbiotti Bankruptcy Decision

Tort talkers may recall that I recently reported on the case of Gubbiotti v. Santey, 880 M.D.A. 2011, 2012 W.L. 2389449 (Pa. Super. June 26, 2012), Petition for Allowance of Appeal Filed, 567 MAL 2012 (July 26, 2012) in which the Pennsylvania Superior Court held that 40 Pa. C.S.A. §117 does not allow the pursuit of a lawsuit to establish liability of a Defendant for the sole purpose of recovering from the Defendant’s carrier after that Defendant has received a discharge in bankruptcy.

I note that in a more recent Berks County Court of Common Pleas trial court decision in the case of MacCaull v. Livingston, 2012 W.L. 6777380 (C.P. Berks Co. Aug. 23, 2012 Schmehl, P.J.) Judge Jeffery L. Schmehl essentially limited the Gubbiotti decision to the facts presented before the Gubbiotti court and also noted that the Gubbiotti case did not “address 11 USC §524(e), which numerous courts have held does allow such a suit to go forward despite a bankruptcy discharge. See MacCaull, 2012 W.L. 6777380*1 fn.1 citing with “See, e.g.” signal First Fidelity Bank v. McAgeer, 985 F.2nd 114, 118 (3d Cir. 1993); Greene v. Welsh, 956 F.2d 30 (2d Cir. 1992); In Re Jet Florida Systems, Inc., 883 F.2d 970, 976 (11th Cir. 1989); In Re Gutches, 430 B.R. 342, 345-47 (E.D. Pa. 2009).

In his decision in the MacCaull case, Judge Schmehl denied a Defendant’s Motion to Amend their New Matter (presumably to add a defense of a discharge in bankruptcy). The court denied this motion without prejudice to the Defendant’s right to reassert a defense in a Motion for Post-Trial Relief, based upon the Defendant’s bankruptcy discharge.

Anyone desiring a copy of this Order may contact me at dancummins@comcast.net.

Reserve Your Spot for the Tort Talk Expo 2013 CLE Seminar (April 18, 2013)

Registration is now open for the Tort Talk Expo 2013 CLE Seminar.  Seats are filling up quickly, so please register now.

This CLE seminar promises an update on the law with a Big 80s flavor in terms of videos and clips. 

The program 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.

There will be a post-seminar complimentary cocktail reception where attendees 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

THE TORT TALK BLOG

(www.TortTalk.com)

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

4:00 – 4:30 pm: A VIEW FROM THE BENCH: 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.

ARTICLE: Calculating Delay Damages in Post-Koken Cases

The following article of mine recently appeared in the January 8, 2013 Pennsylvania Law Weekly and is republished here with permission:

Calculating Delay Damages in Post-Koken Cases


By

Daniel E. Cummins

Pennsylvania Law Weekly (January 8, 2013)

As the post-Koken auto law cases begin to proceed through trial and up the appellate ladder, more and more novel issues are being clarified by the courts. One such issue is how to handle the issue of assessing delay damages in cases where there is a tortfeasor defendant and an insurance company defendant, whether it be an uninsured motorist (UM) carrier or an underinsured (UIM) motorist carrier.

A Novel Issue

In its December 28, 2012, decision in the case of Marlette v. State Farm, (Pa. Dec. 28, 2012) (opinion by Todd, J.) (McCaffery, J., dissenting) (Orie Melvin, J., not participating), the Pennsylvania Supreme Court squarely addressed that very issue of whether, after a jury trial in a UM benefits matter, a plaintiff is entitled to delay damages on the full amount of the jury's verdict or only on the reduced verdict after the verdict had been molded downward to the amount of the uninsured motorist's policy limits available under the automobile insurance policy at issue.

After reviewing the law surrounding Pa.R.C.P. 238 delay damages, the court ruled that a plaintiff is not entitled in these types of cases to delay damages against a UM carrier on the full verdict of the jury, but rather only upon that amount that the plaintiff is legally entitled to recover from that defendant. More specifically, the court ruled that in UM cases, a plaintiff may only recover delay damages against the UM carrier under a calculation completed after the verdict is first, where necessary by an excess verdict, molded downward to the amount of the available UM limits under the policy. The court remanded the case back to the trial court for the correct calculation of the delay damages.

Excess Verdict Gives Rise to Issue

In Marlette, the plaintiffs had sued an uninsured tortfeasor and the plaintiffs' own uninsured motorist benefits carrier. The plaintiffs were covered by an uninsured motorist policy that provided total stacked UM limits of $250,000.

The jury in Marlette entered an excess verdict of $550,000 in favor of the injured party plaintiff and $150,000 in favor of the plaintiff's spouse on the loss of consortium claim. In a post-verdict ruling, the trial court molded the verdict against the UM carrier downward to the available UM policy limits of $250,000.

The Allegheny County trial court also molded the verdict downward even further to $233,306, reflecting a credit due to State Farm by virtue of a previous payment made by the carrier in the amount of $16,693.

In a post-trial motion, the plaintiffs requested that their delay damages be calculated based upon the $550,000 portion of the jury's verdict. The parties were in agreement that delay damages were not permitted with respect to a spouse's loss of consortium claim under Pennsylvania law.

The uninsured motorist carrier defendant, State Farm, asserted that the plaintiffs were not entitled to delay damages because State Farm was only legally responsible to pay up to the amounts of its UIM limits under the provisions of that policy or contract of insurance and that to award delay damages that pushed the total amount over and above the policy limits would be in violation of the applicable law.

The trial court disagreed with both parties and awarded delay damages on the reduced figure of $233,306. The delay damages that were awarded did indeed push the final verdict amount up to a number that was above the $250,000 UIM policy limits number.

On appeal, the Pennsylvania Superior Court held that the delay damages should have instead been calculated on the jury's gross verdict amount, i.e., $550,000 (excluding the loss of consortium award). The appellate court also generally ruled that the plaintiffs could recover money from the carrier over and above the UIM policy limits number.

Marlette's Rationale

As noted above, the Pennsylvania Supreme Court has reversed the lower courts' decisions in Marlette and sent the matter back to the trial court for a delay damages calculation consistent with its decision, i.e., on the reduced, molded amount and with the UM carrier being responsible for any award amounts only up to the amount of the policy limits.

The rationale for the Supreme Court's decision in Marlette was based, in part, on its reasoning set forth in its previous decision in the case of Allen v. Mellinger, 784 A.2d 762 (Pa. 2001). In Allen, the court limited the delay damages calculation to the statutory cap amount ($250,000) against a Commonwealth defendant, i.e., the amount legally recoverable from that party, as opposed to the calculation being based upon the verdict, which totaled $2.9 million.

Both the Allen court and the Marlette court emphasized that the obvious and stated purpose of Rule 238 is to compensate a plaintiff for the delays attendant in his recovery in a civil litigation matter. Rule 238 provides, in relevant part, that "damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury ... and shall become part of the verdict, decision or award."

In its opinion, the Marlette court quoted the Allen case in stating that it "defies reason" to suggest that the basis for calculating compensation for delay could be based upon anything other than that amount of a verdict that a defendant was actually responsible to pay to the plaintiff.

The court in Marlette further stated that, because the law of Pennsylvania limited a plaintiff's recovery in a UM case to the amount of the UM limits agreed to under the applicable contract of insurance, there could be no valid complaint of a delay for the plaintiff related to receiving amounts in excess of those limits, as the plaintiff was not entitled to receive those excess amounts in this litigation in any event.

According to Marlette, it therefore followed that if there is no valid claim for a delay in receiving those excess amounts above the policy limits under the applicable law, then there is no basis to include those excess amounts in the calculation of delay damages under the terms of Rule 238.

In other words, if there was only $1,000 in a bank account, would there be any reason for a bank to pay interest to the account holder for any amounts above that? More simply put, justice delayed is justice denied only to the extent that justice must be paid.

Open Questions Remain

Given the courts' practice of generally deciding UIM and UM issues hand-in-hand, it is anticipated that UIM cases will be handled in a similar fashion, i.e., delay damages will be calculated based upon a reduced verdict molded down to the amount of the available UIM limits in a given case.

In a post-Koken case, the issue may become whether there should be two separate amounts of delay damages depending upon which defendant is paying those damages.

In other words, an open issue remains as to whether there should be delay damages assessed on the full verdict against the third-party tortfeasor defendant and a separate delay damages assessment against the UIM carrier based only upon a downward-molded verdict against the UIM carrier to the amount of the UIM limits. It would appear that separate calculations may be warranted under Marlette's rationale that delay damages to be paid by a particular party should be based upon the amount that party is legally responsible to pay.

Also, under that same rationale, it appears that the credit due to the UIM carrier in the amount of the tortfeasor's liability limits should also be applied as a further reduction, or downward molding, of the verdict before the delay damages calculation is begun. In other words, another open issue remains as to whether a UIM carrier's delay damages assessment only be applied to those damages left against that carrier after the verdict is molded down to the available policy limits amount and after the third-party credit in the amount of the liability limits due to the UIM carrier is applied.

Yet another issue that may come to light in the future is that where the new Fair Share Act (applicable to claims arising on or after June 28, 2011) comes into play, there are multiple tortfeasor defendants involved in the auto accident trial, and each tortfeasor defendant is assigned a proportionate share of the percentage of liability.

In such a scenario, will each tortfeasor defendant's delay damages be assessed against only that percentage of the liability assigned to each tortfeasor as that percentage is the only portion of the verdict that is legally recoverable by the plaintiff against that tortfeasor? Also, once the calculation against the tortfeasors is somehow figured out, what would be the appropriate process of separately calculating the delay damages against the UIM carrier defendant?

Sometimes it seems that the more issues are resolved, the more others are created. That, my friends, is the beauty of the law (and what keeps us relevant).

Daniel E. Cummins is a partner and civil litigator with the Scranton law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.

Judge Amesbury of Luzerne County Addresses Liability of a Car Valet Service

In his recent decision in the case of Moranko v. Downs Racing, L.P. d/b/a Mohegan Sun at Pocono Downs, No. 2011-CV-10312 (C.P. Luz. Co. Jan. 3, 2013 Amesbury, J.), Judge William H. Amesbury of the Luzerne County Court of Common Pleas reviewed the issue of the responsibilities owed by a valet service of an establishment with respect to returning a motor vehicle to an allegedly visibly intoxicated person.

According to the opinion, the Plaintiff’s decedent arrived at a Pennsylvania casino and utilized the valet service on the premises. The Court’s Opinion noted that, while no one apparently saw the decedent consume any alcoholic beverages on the premises, at approximately 7:30 p.m. that evening, the decedent was allegedly seen by other patrons in a bar area of the casino in an allegedly visibly intoxicated state.

By 8:02 p.m., the decedent requested his car from the valet service. The Opinion notes that the decedent’s vehicle was delivered the decedent at approximately 8:11 p.m. The decedent was then involved in a fatal one-vehicle accident after leaving the casino premises.

In the Complaint filed on behalf of the decedent, there was a Dram Shop claim alleging service of alcohol to a visibly intoxicated person and a negligence claim based upon the delivery of the decedent’s vehicle to him while he was allegedly visibly intoxicated.

This case came to the Court by way of a Motion for Summary Judgment filed by the defense.

After applying the facts to the applicable law, the Court entered summary judgment in favor of the Defendant on all claims.

With respect to the Dram Shop claim, the Court noted that there was no direct evidence in the records to support the allegation that the Defendant had served the decedent with alcoholic beverages while he was visibly intoxicated.

In this regard, the Court noted that the decedent was on the premises for a relatively short period of time and that there were other unrelated vendors on the premises who could have sold alcoholic beverages to the decedent.

The Court disagreed with the Plaintiff’s argument that there was sufficient circumstantial evidence to allow this case to proceed to trial. The Court stated that, under the circumstances, any finding by the jury in favor of the Plaintiff under the record before the Court would be based upon mere speculation and conjecture.

With regards to the claim of negligence against the valet service, the Court stated that there was no Pennsylvania law that supported an argument that the valet service owed a duty to the decedent as alleged by the Plaintiff.

In its analysis, the Court reviewed the law of bailment and stated that, any refusal by the Defendant to return property in a mutual bailment, such as was present in the valet service arrangement, could possibly constitute a conversion. Accordingly, summary judgment was entered in favor of the Defendant on this claim as well.

Anyone wishing to review Judge Amesbury's decision in Moranko may click this LINK.

I send thanks to Attorney David Heisler of the Scranton office of Cipriani & Werner for bringing this case to my attention.


UPDATE:  To review the Tort Talk Post on the Superior Court Opinion affirming the trial court's decision in this matter and to see the Link to the Pennsylvania Supreme Court Order denying the Petition to Appeal to that Court, click HERE.