Summary Judgment Granted in Erie County Limited Tort Case

In his recent decision on the limited tort case of Putnam v. Phillips, No. 11337-CV-2012 (C.P. Erie Dec. 18, 2013 Connelly, J.), Judge Shad Connelly granted a defendant’s Motion for Partial Summary Judgment by ruling the Limited Tort restriction applied to the different plaintiffs and that the record did not establish any serious injuries. 

In his decision, Judge Connelly addressed the applicability of the Limited Tort restriction under 75 Pa. C. S. A. Section 1705(b)(2) and ultimately ruled the limited tort option did apply. Conflicting tort options existed in the different households where the minor plaintiffs were alleged to reside.

In his decision, Judge Connelly addressed the applicability of the Limited Tort option under 75 Pa.C.S.A. Section 1705(b)(2).  In the end, the limited tort option covering the vehicle the plaintiffs occupied, which was owned by their mother who had selected the limited tort option, was deemed to control.  The plaintiffs father held a full tort policy but his vehicle was not involved in the accident.

Anyone wishing to review this decision in Putnam may click this LINK.

I send thanks to Attorney William C. Wagner of the Erie, PA law firm of Marnen, Mioduszewski, Bordonaro, Wagner & Sinnott, LLC for bringing this case to my attention.

Recent Facebook Discovery Decision Out of York County

Another Facebook decision has been brought to my attention.....this one out of York County.

In his November 4, 2013 decision in the case of Hunter v. PRRC, Inc., No. 2010-SU-3400-71 (C.P. York   Linebaugh, P.J. ), President Judge Stephen P. Linebaugh ruled that a defendant must meet a threshold showing of relevant information on a Plaintiff's public social media/Facebook pages before access to the private pages of the site would be allowed.  There must be a showing of a reasonable probability that relevant information will be also found on the private pages of the site.

The court also noted that a Plaintiff also retained the right to request a protective order if the allowance of the discovery would cause unreasonable annoyance, embarrassment, etc. under Pa.R.C.P. 4012.

In this case, the court ultimately ruled that the defense had not met the threshold showing and, as such, the motion to compel was denied.

Anyone wishing to review this decision may click this LINK.

I send thanks to Attorney Maggie Grab of the law firm of Griffith, Strickler, Lerman, Solymos, and Calkins for bringing this decision to my attention.

Emotional Distress Injury is a Bodily Injury

Tort Talkers may recall the case of Lipsky v. State Farm previously being summarized here which involved the issue of whether an emotional or mental distress claim by a physically uninjured bystander who witnessed a family member get hit and killed by a car  amounts to a “bodily injury” to trigger coverage under the policy covering the tortfeasor driver’s car.

The Pennsylvania Superior Court previously ruled that such circumstances do meet the definition of a “bodily injury” in this context.

The policy at issue in Lipsky v. State Farm Mutual Automobile Insurance provides coverage for "bodily injury to a person and sickness, disease or death which results from it."

Here is a LINK to the Superior Court’s previous Opinion  (including the concurring and dissenting Opinions of the 2-1 decision), written by then President Judge Correale F. Stevens in the case. 

Judge Stevens is now a member of the Pennsylvania Supreme Court, but did not participate in this matter when it came before the highest court.  As such, there were only six Justices available to review the issue and, yes, they split down the middle.

On January 23, 2014, an evenly split six-justice Pennsylvania Supreme Court issued a per curiam Order indicating that it could not reach a consensus on the matter thereby allowing to stand the previous Superior Court ruling that a negligent infliction of emotional distress claim by plaintiff allegedly arising from the witnessing of a family member being killed by a car is indeed a distinct bodily injury covered by the tortfeasor’s automobile insurance policy.   Anyone wishing to review the Supreme Court's Order may click this LINK.

Source: Article by Zack Needles, "Pa. High Court Stalemate Lets Emotional Distress Claim Stand."  The Legal Intelligencer (1/27/14).

Judge Mariani of Federal Middle District Court Denies Request for Class Action on UIM Rejection Form Issue

Federal Middle District Judge of Pennsylvania Robert D. Mariani recently issued a Memorandum and Order in Webb v. Discovery Prop. & Cas. Ins. Co.,  No. 3:08 CV 01670, 2014 WL 105608 (M.D. Pa. Jan. 9, 2014) (mem.) in which the court denied a motion for class certification in a case involving the Pennsylvania Motor Vehicle Financial Responsibility Law (MVFRL). 

 

The court had previously held in this matter that the insurer's underinsured motorist (UIM) rejection forms violated 1731(c) as there was additional language that the insurer incorporated into the rejection form over and above the language mandated by the statute. The plaintiff filed a motion seeking class certification and appointment of counsel on the issues presented. 

Judge Robert D. Mariani
Federal Middle District
Court of PA

Judge Mariani denied the request for a class certification as the requirements of Fed.R.C.P. 23(a)(1) regarding numerosity, commonality, and predominance were not met. 

 

The Court ruled that even though UIM coverage was not validly waived under the forms at issue, each individual class member's entitlement to benefits would otherwise depend on a host of other individualized considerations pertaining to the facts of each policyholder's accident and injuries. 

 

Accordingly, the court found that there was no no need to bind the all of the policyholders to a  determination of an action they have not manifested any desire to join.  As such, the class action certification was denied by the court and the request for an appointment of class counsel was deemed to be moot.

 

Anyone wishing to review Judge Mariani's decision in the case of Webb may click HERE.

 

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

 

Source of image: www.times-tribune.com.

 

 

Federal Western District Court Applies Restatement (Third) in Products Case

Another Western District of Pennsylvania Federal Court decision has come down in favor of the application of the Restatement (Third) for products cases.

In Morris v. Phoenix Installation & Management Co., 2013 U.S. Dist. Lexis 181018 (W.D. Pa. Dec. 30, 2013 Bissoon, J.), Judge Cathy Bissoon granted in part and denied in part a Motion for Summary Judgment in a products case.

Of note is the court's application of the Third Restatement applies to product liability actions in Pennsylvania and its ruling that it is unclear as to whether the assumption of risk doctrine applies under that Third Restatement in these types of cases. 

In the context of this case, the court also ruled that designs and technical drawings are not to be considered to be products.  The court also found that allowing others to copy a design does not make those parties, the seller of a product.  

Moreover, the court held that a company whose employees modified a product at a customer’s request is not entitled to summary judgment on the issue of substantial modification, as the modification, made by the defendant’s own employees, was arguably foreseeable.

Anyone wishing to review this decision may click this LINK.

The Tort Talk Products Liability Restatement Scorecard, listing a number of case on the debate over whether to apply the Restatement (Second) or the Restatement (Third) can be viewed HERE.

I send thanks to Attorney James Beck, writer of the excellent Drug and Device Law Blog and who is affiliated with the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Split Pennsylvania Supreme Court Addresses Immunity of Drug Companies in Products Cases

A split Pennsylvania Supreme Court issued a ruling on January 21, 2014 in the case of Lance v. Wyeth, 17 EAP 2011 (Pa. 2014) finding that drug companies are not immune to products liability claims in Pennsylvania for defective drugs.

In this case, the plaintiff was attempting to drug companies under allegations that the companies were negligent in testing, marketing and designing their prescription drug products, including the diet drug Redux.

The majority opinion was written by Justice Thomas G. Saylor who was joined by Justices Max Baer, Debra M. Todd and Seamus P. McCaffery. Justice J. Michael Eakin wrote a dissenting opinion, in which Chief Justice Ronald D. Castille joined.

Anyone interested in reviewing the majority opinion may click this LINK.  The dissenting opinion can be viewed HERE.

For a more detailed analysis of the import of the Lance decision, including any impact it may have on the pending debate on whether the Restatement (Second) or Restatement (Third) should be applied in Pennsylvania products liability cases, check out today's blog post from the excellent Drug and Device Law Blog HERE.

I send thanks to Attorney Ken Newman of the Pittsburgh office of Thomas, Thomas & Hafer for bringing this case to my attention.

Pennsylvania Supreme Court Rules That UIM Offset Clause Entitles UIM Carrier to Offset Amount of All Damages Recovered by Plaintiff From All Parties Sued

In its January 21, 2014 Opinion in the UIM offset case of AAA Mid-Atlantic Ins. Co. v. Ryan, No. 12 MAP 2013 (Pa. 2014)(Opinion by Todd, J.), the Pennsylvania Supreme Court addressed the issue of whether, under a UIM policy of insurance, the amount of the insured injured party's recovery may be offset by the amount of all damages paid in satisfaction of the underlying judgment, or by only the amount of compensation paid under the auto insurance policy of the underinsured third party tortfeasor defendant who caused the accident.

By way of further background, the injured party plaintiff filed a third party lawsuit against the defendant tortfeasor driver, along with a separate lawsuit against the City of Philadelphia and PennDOT asserting a defective design of a roadway.

The case against PennDOT was dismissed prior to trial by agreement. 

The third party tortfeasor driver settled by tendering his $25,000 liability limits.

The remaining case against the City of Philadelphia proceeded to an arbitration in which the arbitrator awarded the Plaintiff a gross award of $500,000 but apportioned liability among the parties as 50% against the defendant tortfeasor driver, 35% against the injured party plaintiff, and 15% against the City.

Taking away 35% apportioned to the injured party plaintiff from the gross award entered resulted in a net award of $325,000.

Pursuant to the doctrine of joint and several liability which applied in this matter, the City paid the plaintiff $300,000 and, as noted, the defendant driver paid his $25,000 liability limits.  Thus, the plaintiff was paid the full amount awarded.

Thereafter, the injured party plaintiff turned to her own auto insurance carrier, AAA Mid-Atlantic Insurance Company for UIM coverage.

The UIM carrier denied coverage under its "Limit of Liability" clause which provided, in pertinent part, that "[t]he limit of liability shall be reduced [] by all sums paid because of the "bodily injury" by or on behalf of persons or organizations who may be legally responsible."

The "Limit of Liability" clause further provided that "[n]o one will be entitled to receive duplicate payments for the same elements of loss."

After a UIM arbitration panel awarded the injured party plaintiff a UIM recovery that only considered the defendant tortfeasor driver's liability limits in terms of any offset, the UIM carrier litigated the issue up the appellate ladder to the Pennsylvania Supreme Court. 

Throughout the appeal process, the conflicting public policy interests of (1) cost containment and (2) compensating those injured by a tortfeasor who lacks adequate coverage, were hotly debated.

As noted, by the time the case reached the Pennsylvania Supreme Court, that Court framed the question presented as involving whether a UIM recovery may be offset against all damages paid in satisfaction of an underlying third party judgment, or may such a UIM recovery only be offset by the amount paid out under the defendant tortfeasor driver's automobile liability insurance policy.

After thoroughly analyzing the variety of cogent arguments raised on both sides of the issue, the Pennsylvania Supreme Court in the case of AAA Mid-Atlantic Ins. Co. v. Ryan ruled that the "Limit of Liability" clause in the UIM policy did not violate the public policy of affording compensation to parties injured by underinsured drivers since, under the facts of this case, the injured party was fully compensated for his injuries by receiving the entire amount of damages awarded by the underlying third party arbitration panel through payments by the defendant tortfeasor driver and the City of Philadelphia.

In addition to there being no violation of the public policy noted under the circumstances presented in this case, the Pennsylvania Supreme Court also noted that the application of the "Limit of Liability" clause also upheld the long-standing rule against allowing a plaintiff a "double recovery" for the same injuries.

Stated otherwise, as the injured party plaintiff was found to have been fully compensated for her injuries in this matter, the underlying purposes of Pennsylvania's Motor Vehicle Financial Responsibility Law would not be furthered by allowing for an additional recovery against the UIM carrier for the same injuries claimed.

Anyone wishing to review the Pennsylvania Supreme Court's decision in the case of AAA Mid-Atlantic Ins. Co. v. Ryan may click this LINK.

Source of Image: www.strategies360.com