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Court Addresses Issues With Complaint in an Uninsured Motorist (UM) Claim

In the case of Kleinhans v. John Doe and Chubb Limited Ins. Co., et.al., No. CV-20-0678 (C.P. Lycoming Co. Oct. 2, 2020 Tyra, J.), the court addressed Preliminary Objections filed by an insurance carrier in a hit and run uninsured motorist case. 

According to the Opinion, the Plaintiff’s wife was finishing checking out in a retail store while the Plaintiff-husband went out to get the couple’s vehicle. When the wife came out of the store, she saw her husband laying on the ground surrounded by a puddle of blood. A bystander had already called 911 and the Plaintiff was taken to hospital by ambulance. The identity of the driver who allegedly struck the Plaintiff was never discovered and, according to the Opinion, the Plaintiff did not have any memory of the details of the accident.

The Plaintiff filed an uninsured motorist claim. The carrier filed Preliminary Objections to the Plaintiff’s claim for breach of contract, uninsured motorist benefits, medical payments, bad faith, and under the Unfair Trade Practices and Consumer Protection Law.

In part, the court rejected the UM carrier’s assertion that the Plaintiff’s Complaint failed in that the Plaintiff neglected to attach a copy of the police report to his Complaint. The court noted that, in uninsured motorist cases, Pennsylvania law requires that in order for the claim to proceed, the injured party must report the accident to the police or a proper governmental authority and notify his carrier within thirty (30) days of the accident, or as soon as practicably thereafter. See 75 Pa. C.S.A. §1702.

The court emphasized that the statute only requires that the Plaintiff report the accident to the police or another governmental agency as well as his carrier. There is no requirement in that statute that a police report be attached to the Complaint.

The court otherwise denied the Defendant carrier’s Preliminary Objections to the Plaintiff’s Unfair Trade Practices and Consumer Protection Law claims. After reviewing Pennsylvania law on the requirements of this type of claim, the court found that the Plaintiff only generally pled the claim and provided only legal conclusions as to the Defendant’s conduct and the Plaintiff’s reliance upon this conduct. As such, the court granted these Preliminary Objections but allowed the Plaintiff the right to amend the Complaint.

With respect to the Defendant’s assertion that the Plaintiff failed to attach a copy of the insurance policy to this Complaint which allege, in part, a breach of contract, the court found that the Plaintiff was required to do so. As such, these Preliminary Objections were granted but the Plaintiff was allowed the right to file an Amended Complaint with a copy of the insurance policy attached.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 24, 2020).

THE 2020 TORT TALK TOP TEN

             

Here is the 2020 Tort Talk Top Ten--an annual listing of notable cases and important trends in Pennsylvania civil litigation law over the past year as highlighted in Tort Talk blog posts.

If you wish to view the actual Tort Talk post on any of the following cases or topics, or the actual Opinion, please go to TortTalk.com and type the name of the Plaintiff in the case in the Search Box in the upper right hand corner of the blog.  There should be a Link to the actual Opinion within the blog post itself.

10.    Trial Judges Should Stay on the Bench for Voir Dire

The Pennsylvania Supreme Court was positioned to answer the question of whether it was proper for a trial court judge to leave the bench for jury selection in its decision in the case of Trigg v. Children's Hospital of Pittsburgh of UPMC, No. 3 WAP 2019 (Pa. April 22, 2019) (Op. by Todd, J.)(Donohue, J., Concurring)(Wecht, J., Concurring).  

However, in its decision, the Pennsylvania Supreme Court found that the issue had not been preserved for appeal and that the Superior Court had, therefore, improperly addressed the merits of the question presented.

While the Court found that the issue had been waived, several of the Justices wrote Concurring Opinions voicing their thoughts that a trial court judge should remain on the bench during the course of voir dire.

9.    Validity of Reservation of Rights Letters

In the case of Selective Way Ins. Co. v. MAK Services, 232 A.3d 672 (Pa. Super. April 24, 2020) (Bowes, J., Shogan, J., Strassburger, J.) (Op. by Bowes, J.)(Dissenting Op. by Strassburger, J.), the Pennsylvania Superior Court issued an important decision pertaining to the validity of reservation of rights letters issued by liability insurance carriers.

The court emphasized that, in order for a reservation of rights letter to be valid, it must be issued in a timely fashion and it must clearly state the reasons under the policy for the reservation of rights or for the challenge to coverage.  The court also noted that a best practice may be for the insurance company to send the reservation of rights on multiple occasions as the case evolves.

The court noted that, if a carrier fails to meet these recommendations with respect to a reservation of rights letter, the carrier may be estopped from denying coverage in the end.

8.    Still no Appellate Guidance for Post-Koken Cases

The original Post-Koken decision was handed down back in 2005 allowing automobile insurance companies to replace their arbitration clauses with the requirement that UM and UIM claims instead be pursued in a court of law.  Yet, since that time, essentially the only appellate court decision of note handed down was the Stepanovich v. McGraw decision by the Pennsylvania Superior Court back in 2013 in which that court suggested that it was permissible to conduct a trial of the claims against the tortfeasor and the UIM carrier before the same jury (the Pennsylvania Supreme Court inexplicably denied allocatur in the case).

To date, there remain splits of authority all across the Commonwealth of Pennsylvania on a wide variety of Post-Koken issues in terms of pleadings, discovery, and trial.  These varying county decisions can always be viewed on the Post-Koken Scorecard by scrolling down the right hand side of the Tort Talk blog and clicking on the date under "Post-Koken Scorecard."

7.    Courts Address Standards for Sealing a Settlement Agreement

In the case of A.A. v. Glicken, No. 2020 Pa. Super. 197 (Pa. Super. Aug. 14, 2020 Olson, J., Dubow, J., and McLaughlin, J.) (Op. by Olson, J.), the court upheld a Luzerne County trial judge’s decision not to seal a settlement agreement in a minor’s medical malpractice lawsuit. 

In so ruling, the appellate court rejected the Defendants’ argument that not sealing the settlement agreement would have a chilling effect on future settlements and would go against the parties’ interests in privacy. The appellate court found no abuse of discretion by the trial court in denying the Motion to Seal. 

The Superior Court also ruled that the Defendants did not overcome the common law presumption of openness in courts and the Defendant did not meet their burden of showing good cause for sealing the record. 

This issue was also addressed by Judge Terrence R. Nealon of Lackawanna County in the case of Moses Taylor Foundation v. Coverys, No. 19-CV-7423 (C.P. Lacka. Co. May 8, 2020 Nealon, J.), the court addressed a hospital's request to seal the record in a bad faith litigation. 

In the end, the court found that the secrecy interests cited by the hospital and the trust do not supersede the presumption in favor of open access to the judicial records so as to justify a court-sanctioned closure of the record.

6.    Split of Authority on Allegations of Recklessness

In 2020, the split of authority on the propriety of allegations of recklessness continued.  

Some more liberal trial court judges allowed allegations of recklessness to be pled with reckless abandon in any case whatsoever regardless of the facts presented under a rationale that an allegation of recklessness is an averment of a state of the mind and such averments are allowed to be generally pled under Pa.R.C.P. 1019.

Another line of courts emphasized that Pennsylvania is a fact-pleading stated and limited allegations of recklessness to those cases where outrageous facts were present.

Most Plaintiffs attorneys avoid any delays in the forward movement of their cases that may be caused by Preliminary Objections by agreeing to stipulate the claims of recklessness out where they are challenged so long as the Plaintiff retains the option to motion the claims back in if discovery reveals facts sufficient to support a punitive damages claim.

5.    Pennsylvania Superior Court Adopts Test for Staying a Civil Lawsuit While Criminal Charges are Pending against Defendant

In a case of first impression, the Pennsylvania Superior Court has ruled in Keesee v. Dougherty, 230 A.3d 1128 (Pa. Super. March 16, 2020 Bowes, J., Olson, J., Stabile, J.)(Op. by Olson, J.), that a trial court judge must reconsider her refusal to stay a civil lawsuit while a companion criminal case is pending.

The lawsuit in this matter was brought by a nonunion electrical contractor against an indicted union boss and other defendants.

With its ruling the Pennsylvania Superior Court adopted the six-factor test established by the federal courts for determining whether to stay a civil case pending resolution of a related criminal matter.  The court cited to the federal case of In re Adelphia Communications, No. 02-1781, 2003 WL 22358819 (E.D. Pa. 2003).

4.    Pennsylvania Supreme Court Upholds Artful Pleading to Avoid Liability Exclusion

In Erie Insurance Exchange v. Moore, No. 20 WAP 2018 (Pa. April 22, 2020)(Op. by Dougherty, J.)(Dissenting Op. by Mundy, L), the Court allowed artful pleading of negligence by a Plaintiff in a shooting case to avoid exclusions in a liability policy and thereby implicate a carrier’s duty to defend the matter.

This case arose out of the tortfeasor's shooting of the Plaintiff.  The Plaintiff asserted in his Complaint that the shooter had negligently, carelessly and recklessly caused the weapon to be fired.  The Court read the facts to indicate that the shooter had intended to shoot another person and, when the Plaintiff had intervened, the Plaintiff was shot by mistake during the scuffle with the shooter.

3.     Regular Use Exclusion is Under Attack

Over the past two years, the Plaintiff's bar has been successful in attacking the validity of the Household Exclusion in automobile insurance policies.

Energized, the Plaintiff's bar has now set its sights on attacking the Regular Use Exclusion using essentially the same argument that was utilized in the Gallagher v. GEICO case, i.e., that the exclusion acts as an improper de facto waiver of stacked coverage when the MVFRL requires that carriers secure written waivers of stacked coverage from its insureds.

While these attacks initially have not met with success, the Plaintiff's bar scored a chink in the armor with a victory in the Northampton County Common Pleas Court case of Rush v. Erie Insurance Exchange, No. C-48-CV–2919-01979 (C.P. Northampt. Co. June 29, 2019 Baratta, J.). In Rush, Judge Stephen G. Baratta of the Northampton County Common Pleas Court granted partial summary judgment to the injured party plaintiffs after holding, as a matter of first impression by any court in Pennsylvania, that Erie’s regular use exclusion was invalid under the MVFRL.

The recent cases on this issue can be viewed by going to www.TortTalk.com and scrolling down the right hand column until you get to the "Labels."  In alphabetical order under that, click on the label for "Regular Exclusion" to get to the Tort Talk blog posts on those cases.

Also, here is a LINK to my September 10, 2020 Pennsylvania Law Weekly article on the topic entitled "Can the Regular-Use Exclusion Withstand an Attack from the Plaintiffs Bar?"

2.   Lower Courts Continue to Debate Scope of Gallagher v. GEICO Household Exclusion Decision

In 2019, the Pennsylvania Supreme Court attempted to eradicate the Household Exclusion found in automobile insurance policies as an improper de facto waiver of stacked coverage.

In 2020, lower courts struggled with the application of the Gallagher v. GEICO decision to different factual scenarios than that presented in the case decided by the Pennsylvania Supreme Court.

While the Federal District Court judges largely followed the Gallagher v. GEICO decision as eradicating the Household Exclusion, several state court judges upheld the continuing validity of the Household Exclusion based upon the cases before them having different facts than those at issue in the Gallagher v. GEICO decision.

However, just last month, in the case of Erie Insurance Exchange v. Petrie, No. 261 EDA 2020 (Pa. Super. Nov. 18, 2020 Pellegrini, J., Nichols, J., Kunselman, J.)(Op. By Kunselman, J.), a panel of Pennsylvania Superior Court Judges held that the Gallagher v. GEICO decision was not limited to its facts and should be read as invalidating the Household Exclusion.

The recent cases on this issue can be viewed by going to www.TortTalk.com and scrolling down the right hand column until you get to the "Labels."  In alphabetical order under that, click on the label for "Household Exclusion" to get to the Tort Talk blog posts on those cases.

1.    COVID-19 Pandemic Impacts Civil Litigation in Pennsylvania (and across the world)

With the rise of the COVID-19 Pandemic in March of 2020, the courts shut down except for essential matters through September of 2020.  By then, most courts in Pennsylvania began to try to complete jury trials until the second surge compelled most courts to shut down trials again in December of 2020.  It remains to be seen when trials will get back on track in 2021.

The COVID-19 Pandemic also forced attorneys and judges to adapt and to adopt virtual meetings in order to keep cases moving forward.  The use of virtual meetings for depositions and court appointments became the norm, possibly impacting how cases will be handled in the future when the Pandemic goes away.

It is also anticipated that the impact of the Pandemic will be felt in the future in terms of a dip in claims given that there was a stay-at-home Order in effect in Pennsylvania for about two months in the Spring of 2020.

Summary Judgment in Snow Tubing Accident Case Reversed by Pennsylvania Supreme Court

In the case of Bourgeois v. Sno Time Inc., No. 50 M.A.P. 2019 (Pa. Dec. 9, 2020) (Op. by Mundy, J.), the Pennsylvania Supreme Court reversed a Pennsylvania Superior Court's decision affirming the entry of summary judgment in favor of a ski resort in a snow tubing accident case.

According to the Opinion, the Plaintiff sustained a spinal cord injury, resulting in quadriplegia when the snow tube he was riding on collided with a folder deceleration mat that the resort had placed at the bottom of a snow tubing hill to slow down customers in order to prevent them from traveling beyond the run-out-area.

According to the record before the court, the Plaintiff had purchased a snow tubing season pass. On the reverse side of the season pass, there was a release agreement which provided that snow tubing involves “inherent and other risks that could lead to serious injury to death.”

The release on the back of the snow tubing season pass also provided that the customer both assumed all of the risk of snow tubing and released the snow resort from any liability.

After reviewing the record before it, the Pennsylvania Supreme Court concluded that the Pennsylvania Superior Court erred in failing to consider the evidence presented, specifically the expert reports, in a light most favorable to the Plaintiffs. As such, the Pennsylvania Supreme Court reversed and remanded the matter for further proceedings.

The Pennsylvania Supreme Court rejected the defense argument that the trial court had considered the expert reports in the trial court’s granting of summary judgment. The Pennsylvania Supreme Court disagreed with that argument and instead noted that, although the trial court accurately recited the summary judgment standard and, even though the trial court addressed the theories of recklessness and gross negligence, the Pennsylvania Supreme Court felt that the trial court did not do so in a light most favorable to the Plaintiffs. 

The Pennsylvania Supreme Court felt that the expert reports presented in the case created genuine issues of material fact for a jury to resolve and that the trial court erred in not considering them. As such, the Pennsylvania Supreme Court ruled that the Pennsylvania Superior Court had erred in not reserving the trial court on this basis.

Anyone wishing to review a copy of this decision may click this LINK.

Pennsylvania Supreme Court Offers Guidance on the Application of the Sudden Emergency Doctrine in Pedestrian Cases

In the case of Graham v. Check, No. 42 WAP 2019 (Pa. Dec. 22, 2020)(Op. By Wecht, J.), the Pennsylvania Supreme Court addressed the standards for when the sudden emergency defense should be applied in a motor vehicle accident case.

In his Majority Opinion, Justice Wecht noted that Pennsylvania law “recognizes that sometimes injurious accidents are not caused by carelessness, but because events conspire to create a situation so urgent and unexpected that the person alleged to be blameworthy had little or no practical opportunity to avert the harm.” See Op. at p. 1.

In the Majority Opinion, it was reaffirmed that the burden of supporting the application of the sudden emergency doctrine lies with the party asserting it. See Op. at p. 5. Also reaffirmed was the rule that, if the emergency could have been avoided by the exercise of reasonable care, the doctrine should not be applied and instructed to the jury. See Op. at p. 6.

Justice Wecht confirmed that when the evidence in a case suggests that a “sudden emergency” may be evidenced in the record at trial, “the presiding judge may instruct a jury that, should it determine that such an emergency contributed to the accident, it should assess the defendant’s performance commensurately.” Id.

In this regard, Justice Wecht also acknowledged that “since the advent of the automobile, Pennsylvania law has also imposed a heightened standard of care upon drivers to exercise particular vigilance when it is reasonably foreseeable that a pedestrian will cross their path, particularly at intersections.” Id. On page 6 of his Opinion, Justice Wecht reiterated that the application of the sudden emergency doctrine is “[c]ounterposed” against the “bedrock principle that a driver bears a heightened duty relative to pedestrians crossing at intersections. Id.

In this pedestrian versus motor vehicle accident case of Graham v Check, the Pennsylvania Supreme Court found that the trial court in this case erred in instructing the jury on the sudden emergency doctrine as evidence of darkness, an obstructed view, and a lack of evidence of any overtly careless behavior and the fact that the pedestrian abruptly appeared in front of the driver moments before the impact were found to fail to lay a foundation for the provision of that instruction to the jury. Id.

Further on in his Opinion, Justice Wecht noted that the sudden emergency doctrine “should not be understood as a ‘defense’ in the common sense, and [the Majority] finds it ill-advised to use the word ‘defense’ in sudden emergency [jury] instructions in future cases, notwithstanding that the term features in the current suggested standard jury instruction.” See Op. at 19.

Anyone wishing to review the Majority Opinion by Justice Wecht may click this LINK.

Justice Dougherty’s Dissenting Opinion may be viewed HERE.

Commentatary:

Commentators are already pointing to the fact that, in his Dissenting Opinion, Justice Kevin Dougherty read this language as indicating that the Majority went “beyond the question [presented] to decide sua sponte the sudden emergency doctrine is no longer a viable defense in the Commonwealth.”

However, a fair reading of the Majority Opinion reveals that the Majority did not so rule; rather, in the Majority Opinion, it was held that the facts of this particular case did not support the application of the doctrine or the judge's provision of instructions to the jury on the sudden emergency doctrine. The law of the doctrine was otherwise reaffirmed in the Majority's Opinion with the indication that the application of the doctrine should be more closely scrutinized in the context of pedestrians darting out in front of vehicles at intersections given the heightened standard of car imposed on motorists in that scenario.

I send thanks for a number of attorneys for bringing this case to my attention, including Paul Oven, Esq., Scott Cooper, Esq., Kenneth Newman, Esq., and Dale Larrimore, Esq.

Court Addresses Current Status of Law of Negligent Infliction of Emotional Distress

In the case of Watkins v. UPMC Jameson, No. 30002 of 2020 C.A. (C.P. Lawr. Co. Oct. 8, 2020 Cox, J.), the court held that, where the Plaintiff alleged that the medical Defendant did not provide her with proper treatment when she appeared at the hospital at 26 weeks gestation and that proper treatment could have prevented the child’s death, the Plaintiff was found to have sufficiently alleged a duty of care owed to her and a breach of that duty, and had also asserted a viable claim for negligent infliction of emotional distress.

Part of the court’s decision centered around the claim for negligent infliction of emotional distress.

The court in this Watkins case noted that the Pennsylvania Superior Court in the case of Turner v. Medical Center, Beaver Pa., 686 A.2d 830 (Pa. 1996), had acknowledged that the Pennsylvania Supreme Court had abandoned the zone of danger concept and had instead adopted a doctrine based upon the foreseeability of the injury in negligent infliction of emotional distress claims.

Here, the Plaintiff had alleged the existence of a contract or a fiduciary relationship as she had received medical care from the Defendants.

The court noted that the Plaintiff had alleged that proper treatment could have prevented her child’s death. The court found that it was clearly foreseeable that the Plaintiff will be traumatized by giving birth of a child at just 26 weeks into her pregnancy and observing that child in distress prior to the child’s death.

Accordingly, the court found that the Plaintiff had properly alleged a duty of care owed to her by the Defendant and an alleged breach of that duty.

However, with respect to the claim of negligent infliction of emotional distress at issue, the court found that the allegations in the Plaintiff’s Complaint regarding the physical impact or injury element were not specific enough. As such, the court granted the Plaintiff leave to amend the Complaint.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 24, 2020).

HAPPY HOLIDAYS

 

WISHING YOU HAPPY HOLIDAYS