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Zero Verdict For Pain and Suffering Damages Upheld

In the case of Wilson v. Hannigan, Aug. Term, 2022, No. 00196 (C.P. Phila. Co. Nov. 22, 2022 Alan, J.), the trial court issued a Rule 1925 Opinion following a slip and fall case in which a jury found the parties to be equally liable and in which the jury granted the Plaintiff an economic damages award but no pain and suffering award.

The Court noted that, the Plaintiff was not able to advise the jury was to what caused her to fall on a sidewalk.  

Also, the medical evidence appeared to confirm that the Plaintiff may have sustained an ankle sprain for which she had minimal and conservative treatment.  The trial court judge also noted in his Opinion that, although the Plaintiff testified to the jury that she had walked with a limp at times, the jury was able to watch the Plaintiff walk to and from the witness stand.    

In requesting the Pennsylvania Superior Court to affirm its decision denying the Plaintiff’s Motion for a New Trial, the trial court found that the evidence was sufficient for the jury to decline to award the Plaintiff non-economic damages where the Plaintiff’s subjective complaints were inconsistent with the objective medical evidence presented.

The court also found that the Plaintiff’s treatment was excessive in relationship to the alleged severity of the injury.  The Plaintiff was also noted to have been non-compliant with her doctor's treatment recommendations.

The trial court also faulted the Plaintiff with respect to the number of issues raised on appeal in the Plaintiff’s Concise Statement of Matters Complained of on Appeal.  Given that the Plaintiff's Concise Statement was not concise, the trial court requested that the Superior Court find that the Plaintiff's alleged errors be deemed waived under Pa.R.A.P. 1925(b)(4)(vii).

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 14, 2023).

For review Tort Talk posts on Zero Verdict cases, as well as an article entitled "Litigating the Zero Verdict" by Daniel E. Cummins and Stephen T. Kopko, please click this LINK.

CUMMINS LAW IS HIRING

 

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Punitive Damages Claims Dismissed in Federal Trucking Accident Case

In the case of Koch v. Lawson, No. 4:22-CV-01647 (M.D. Pa. April 12, 2023 Brann, C.J.), the court granted a partial Motion to Dismiss in which a Defendant attacked punitive damages claims asserted by a Plaintiff in a trucking accident accident case.

Chief Judge Matthew W. Brann of the Middle District Court of Pennsylvania ruled that punitive damages are proper only when the Defendant’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton, or reckless conduct. In order to proceed on a claim for punitive damages, the Plaintiff must pled facts in support of the same.

In support of a punitive damages claim, the Plaintiff rattled off a long list of traffic violations against the Defendant in the Complaint, including allegations that the Defendant-driver was driving while distracted or fatigued and that the driver allegedly fell asleep while driving.

The Court noted that, while the Plaintiff had alleged a slew of traffic violations alleged committed by the Defendant-driver, the Plaintiff had only factually alleged that the Defendant-driver operated a tractor trailer and, at the time of the accident, allegedly ran a red light.    

Judge Brann noted that a Plaintiff who only alleges that a Defendant failed to obey traffic laws has not met the pleadings requirements for punitive damages claims, particularly where underlying facts are not also pled in support of such allegations of outrageous conduct.

It was also emphasized that, in this case, the Plaintiff did not allege any facts to support an allegation that the driver made a conscious decision to drive while fatigued.

Chief Judge Brann ruled that, at most, the Plaintiff alleged that the Defendant-driver failed to follow the Rules of the Road.  The Court found that such allegations, alone, are insufficient to support a claim for punitive damages.  As such, the punitive damages claims asserted against the Defendant-driver were dismissed.

Chief Judge Brann otherwise ruled that, with respect to the allegations of punitive damages asserted against the Defendant trucking company, those claims would also be dismissed given that the Plaintiff had only pled conclusory allegations that the company Defendant knew or should have known certain things without the Plaintiff also providing any factual specificity in the Complaint.  Accordingly, the punitive damages claims asserted against the Defendant-company were also dismissed.    

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed at this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia law firm of the Reed Smith law firm for bringing this case to my attention.

Source of image:  Photo by Pixabay on www.pexels.com.

Amendment To Add New Claim To Med Mal Case Not Allowed After Statute of Limitations Had Expired

In the case of Kersey v. Pisano, No. 798 EDA 2022 (Pa. Super. March 7, 2023 Sullivan, J., Panella, P.J., Bender, P.J.E.) (Op. by Sullivan, J.)[Non-Precedential], the court affirmed in part and reversed in part relative to post-trial motions filed in a medical malpractice case after a verdict was entered in favor of a Plaintiff.

In this case, the Pennsylvania Superior Court found that, where the Plaintiff’s Complaint made allegations solely about prostate cancer, it was an error by the trial court to allow an amendment of the Complaint so as to permit evidence to be presented at trial on a claim for liver cancer, where that claim was only asserted after the two (2) year statute of limitations had run.

The court reaffirmed the general rule that amendments to a Complaint to add new causes of action after the statute of limitations is not permitted.

The court additionally noted that, where an expert report includes a new cause of action on behalf of a Plaintiff, the trial court may not permit the Plaintiff to introduce that opinion after the applicable statute of limitations has run.

The court found that there was no possible reading of the Complaint that could support a claim that the allegations of liver cancer were contained therein so as to allow the desired amendment or claims to proceed.

In this matter, because the trial court utilized a special verdict questionnaire that allowed the jury to reach separate verdicts for the two (2) types of cancer, only the jury verdict relative to the claim of medical malpractice related to the liver cancer would be reversed.

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


I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm.

REMINDER: Tomorrow (April 26th) is Administrative Professionals Day

 

Tomorrow, April 26th, is Administrative Professionals Day.

Don't forget to show gratitude to those who help to make your life smoother day in and day out.

Source of image: Photo by George Dolgikh on www.pexels.com.

Pennsylvania Supreme Court Rules No New UIM Waiver Forms Required When a Change Is Made to an Existing Auto Insurance Policy

In the case of Franks v. State Farm Mut. Auto. Ins. Co., No. 42 MAP 2022 (Pa. April 19, 2023) (Op. by Mundy, J.), the court ruled that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived through a waiver form executed by the insured, did not require the insurance carrier to secure a renewed expressed waiver of stacked coverage under §1738(c).

At the lower level, the Pennsylvania Superior Court had described the issue in this case as one of first impression.    

By way of background, according to the Pennsylvania Supreme Court's Opinion, the injured parties purchased automobile insurance from State Farm in 2013 for their two (2) vehicles.

The Plaintiffs included underinsured motorist coverage in their policy but completed a form rejecting stacked UIM coverage in compliance with §1738(d)(2) of the Motor Vehicle Financial Responsibility Law (“MVFRL”).

The court noted that, absent any such waiver, stacked coverage would have been the default.

Thereafter, under the history of the insurance policy in question, the Plaintiffs removed one of the original vehicles and added a third vehicle to the policy in 2014. The Plaintiffs again rejected stacked UIM coverage at that point.

The Plaintiffs made another change to the automobile insurance policy in 2015 under which they removed the other of the original insured vehicles and replaced it with a different vehicle. No additional form rejecting stacked UIM coverage was offered or sought to be completed on the occasion of the removal of the last vehicle.

The court emphasized that the ongoing premiums paid by the Plaintiffs reflected the lower rate for non-stacked UIM coverage on the vehicles under the policy.

Thereafter, one of the Plaintiffs was injured in the motor vehicle accident. After pursuing a claim against the tortfeasor, the Plaintiffs pursued a UIM claim against State Farm. The parties disagreed on what the available limits would be.

The Plaintiffs argued that, with the last change to the policy, there was no valid waiver of stacked UIM coverage secured by the carrier and that, as such, the Plaintiffs were entitled to default stacked coverage under Pennsylvania law.

The Superior Court had ruled in favor of the insurance company.

On this appeal, the Supreme Court ruled that the Superior Court did not err when this Superior Court held that the removal of a vehicle from a multiple motor vehicle insurance policy, in which stacked coverage had been previously waived, did not require a renewed express waiver of stacked coverage pursuant to §1738(c).

The basic rationale of the Court was that Section 1738 requires insurance companies to secure a new written waiver of UIM coverage whenever an insurance policy is purchased.  Here, there was a change made to an existing policy.  No new policy was purchased.  As such, there was no requirement under the law for the carrier to secure a new waiver form.    

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